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LAT 

MISCELLiNIES : 

CONTAINING 

.tij\r  jj\rTjRoi)UCTioj\r  to  the  study  of  the  law, 
NOTES  ON  BLACKSTONE'S  COMMENTARIES, 

SHEWIXG 

THE  VARIATIONS  OF 

THE  LAW  OF  PENNSYLVANIA  FROM  THE  LAW  OF  ENGLAND^ 

AND  WHAT  ACTS  OF  ASSEMBLY 

MIGHT    REC^IRE 

TO  BE  REPEALED  OR  MODIFIED; 

OBSERVATIONS 

Qji  Smith's  edition  of  the  Laws  of  Pennstlvania; 

STRICTURES 

Oh  decisions  of  the  supsejue  court  of  the  United  States. 

AT/ra 
ON  CERTAIN  ACTS  OF  CONGRESS, 

WITH 

SOME  LAW  CASES, 
A  VARIETY  OF  OTHER  MATTERS, 

CHIEFLY  ORIGIjYAL. 


BY  HUGH  HENRY  BRACKENRIDGE, 

V  Judge  of  the  Supreme  Court  of  the  State  of  Pennsylvania* 


PHILADELPHIA. 

•UJJLISIIED    BY  P.   BYRNE,- 

1814. 


District  of  Peniisylvahia,  to  Wit  :■ 

,«»#«*««*  BE  IT  REMEMBERED,  That  on  tlie  tourtecnth  day  of  Ceceni- 
*  sEAt  *  ^^'"'  ^^  ^'^^  thirty-eighth  year  of  the  Independence  of  the  United 
;  '  ■  *  States  of  America,  A.  D.  1813,  Hugh  Henry  Brackenridge,  of 
*********  the  said  district,  hath  deposited  in  this  office,  the  title  of  a  book, 
the  right  whereof  he  claims  as  author,  in  the  words  following,  to  wit : 

"Law  Miscellanies:  Containing  an  Introduction  to  tlie  Study  of  tlje  Law; 
S^otcs  on  Blackstone's  Commentaries,  shewing  the  variations  of  the  Law  of 
Pennsylvania  from  the  Law  of  Englaitd,  and  what  Acts  of  Assembly  might 
require  to  be  repealed  or  modified ;  Observations  on  Smith's  edition  of  the 
Laws  of  Pennsylvania ;  Strictures  on  decisions  of  the  Supreme  Court  of  the 
United  States,  and  on  certain  Acts  of  Congress,  with  some  Law  Cases,  and 
ii  variety  of  other  matters,  chiefly  original.  By  Hugh  Henry  Brackenridge, 
a  Judge  of  the  Supreme  Court  of  the  State  of  Pennsylvania." 

In  conformity  to  the  act  of  the  Congress  of  the  United  States,  intituled, 
"  An  act  for  the  encouragement  of  learning,  by  securing  the  copies  of  maps, 
charts,  and  books,  to  the  authors  and  proprietors  of  sucli  copies  during  the 
times  therein  mentioned." — And  also  to  the  act,  entitled,  "An  act  supplemen- 
tary to  an  act,  entitled,  "  An  act  f6r  the  encouragement  of  learning,  by  secu- 
ring the  copies  of  maps,  charts,  and  books,  to  the  authors  and  proprietors  oV 
such  copies  during  the  times  therein  mentioned,"  and  extending  the  benefits 
thereof  to  the  arts  of  designing,  engraving,  and  etching  historical  and  otlier 
prints." 

D.  CALDWELL, 
'  Clerk  of  the  District  of  Pennsylvani*. 


Alexander  (J  PhiiJipSy 
Printers,  Carlisle. 


H-5 


2  4  3  5 


CONTENTS. 

Page. 

Pbefatory  Observations,             .              -               -  J 

Particulur  Introduction,                   -                 -                 -  _  4 
Introduction  to  what  might  be  called   the  Pennsylvania 

Blackstonc,  "^ 
■Some  view  of  the  endeavours  to  improve  the  law  by  the 

legiblature,  27 
Note  introductory  to  the  repoi-t  of  the  judges  on  the  Bri- 
tish statutes  in  force,  Sec.  S9 
On  the  stare  decisis,                 .                    -                   -  54 
On  the  amendment  or  alteration  of  laws,             -              -  70 

NOTES   ON   BLACKST.ONE's   COM  MENT  AR  IE  S,  B  OOK    1. 

And  it  (law)  is  that  rule  of  action  whifth  is  prescribed  by 
some  superior,  and  which  the  inferior  is  bound  to 
obey.    I  Bl.  Com.  38,  76 

Every  law  may  be  said  to  consist  of  several  parts ;    one 

declaratory.  Sec.  another  directory.  Sec.   1  Bl.  Com.  53,  78 

Ex  post  facto.   I  Bl.  Com.  46,  -  -  81 

Municipal  law,  a  rule  prescribed  by  the  supreme  power 

in  a  state.   1  Bl.  Com.  46,  '  83 

Repoits.   IBI.  Com.  71,  -  ...         86 

Roads.   1  Bl.  Com.  141.  -  -  -  -  95 

Representative  not  bound  to  consult    with,   or  take  the 

advice  of  his  constituents.   1  Bl.  Com.  161,  96 

As  to  the  qualifications  of  the  electors.   I  Bl.  Com.  172,  99 

The  kmg's  prerogative.   1  Bl.  Com.  246,  -  -  115 

JvOtes  on  blackstone's  commentaries,  book  2. 

Iji  the  beginning  of  the  world,  wc  are  informeil  by  holy 
writ,  the  all-bountiful  creator,  gave  to  man  "dominion 
over  alltl>e  caith,"  Sec.  This  is  the  only  true  and  so- 
lid foundation  of  man's  dominion  over  external  things, 
kc.  2  Bl.  Com.2,  '  121 

Tenant  in  dower.  2  Bl.  Com.  129,  ^  -  -         128 

IloAV  dower  may  be  barred  or  prevented.  2  Bl.  Com.  135,  130 

Concerning  the   division  and   calculation  of  time,  by  the 

English  law.  2  Bl.  Com.  140,  135 

riie  nature  and  degrees  of  kindred  being  thus  in  some 
measure  explained,  I  shall  next  proceed  to  lay  down 
A  series  of  rules,  or  canons  of  inheritance,  according 
to  which  estates  arc  transmitted  from  the  ancestor  to 
the  heir,  Sec.  2  Bl.  Com.  207,  138 

i'hr,  fourth  species  of  assurance  by  matter  of  record  is  a 

fummon  recoverv.  2  Bl.  Com.  357,  1  IS. 


CONTENTS. 

Gdneral  rules  and  maxims  which  have  been  laid  down  by 
courts  of  justic^  for  the  construction  and  exposition  of 
tiie  several  species  of  common  assurances,  &c,  •  I  Bl. 
Com.  379,  15§ 

Upon  the  two  principles  of  inconvenience  and  hazard, 
compared  toijether,  different  nations  have  at  different 
times  established  different  rates  of  interest.  2  Bl. 
Com.  462,  l6o 

NOTES   ON    BLACKSTONE's  COMMENTARIES,  BOOK   3. 

Abatement;  or  removal  of  nuisances.  3  Bl.  Com.  5,  -         157 

Rfedress  of  injuries  by  suit  in  courts.  3  Bl.  Com.  22,  -         161 

The  high  court  of  chancery,  kc.  3  Bl.  Com.  47,  -  167 

Ecclesiastical  courts  ;  equity  courts.  3B1.  Com.  98,         -         169 
Some  agreements  indeed,  though  never  so  expressly  made, 
are  deemed  of  so  important  a  nature,  that  they  ought 
not  to  rest  in  verbal  promise  only,  which  cannot  be 
proved  but  by  the  memory  (which  will  sometimes  in- 
duce the  perjury)  of  witnesses.  3  Bl.Com.  159,  17o 
A  v/rit  then  of  ejcctione  firmae,  or  action  of  trespass  in 
ejectment,  lieth  Avhcre  lands  or  tenements  are  let  for 
a  term  of    years  :    and  afterwards  the  lessor,  rever- 
sioner, remainder  man,  or  any  stranger  doth  eject  or 
oust  the  lessee  of  his  term.  3  Bl.  Com.  199,  17S 
For  every  man's  land  is,  in  the  eye  of  the  law,  enclosed 

and  set  apart  from  iiis  neighbour's.  3  Bl.  Com.  209,  176 

Writ  of  mandamus.  3  Bl.  Com.  264,  -  -  -  178 

Set-off.     3B1.  Com.  304, 182 

Limitation  to  six  years  after  caufee  of  action  commenced, 

by  Stat.  21  Jac.  1.  c.  16.     3  Bl.  Com.  307,  189 

Changing  the  venue.  3  Bl.Com.  352,  -  -  191 

Special  verdict.  3  Bl.  Com.  377,  -  -  -  193 

Thus  much  for  judgments ;    to  which  costs  are  a  neces- 
sary appendage.  3  Bl.Com.  399,  194 
Writ  of  error.  3  Bl.  Com.  406,              -             -             -  197 
Ti\e  next  species  of  execution  is  against  the  goods  and 
cl-attels  of  the  defendant ;  and  is  called  a  writ  of  fieri 
fa^as.  3  Bl.  Com.  417,  20» 
The  fourth  species  of  execution  is  by  writ  of  elegit.  3  Bl. 

Com.  418,  ■  207 

Ereehold  lands  which  he  had  at  the  time  of  the  judgment 

given.  3  Bl.  Com.  418,  210 

Wager.  3  Bl.  Com.  452,  -  -  -  -         211 

Extract  of  a  letter  from  Joseph  Reed,  recorder  of  the 

city  of  Philadelphia,  214 

NOTES   ON    BLACKSTONE's   COMMENTARIES,  BOOK   4, 

Jjut  by  "jtat.  22  Car.  2.  c.  7,  no  person  is  allowed  to  work 

on  the  Lord's  day.  4  Bl.  Com.  63,  217 

Conspiracy.  4  Bl.Com.  136,  ....         220 

Qf  a  nature  very  similar  to  challenges  are  lilfcl^.    4  Bl. 

Com.  150,  ^  230 


CONTENTS. 


J^age. 


We  are  next  to  consider  the  crime  of  wilful  and  delibe- 
rate murder ;  a  crime  at  which  human  nature  starts  ; 
and  which  is,  I  believe,  punished  almost  universally 
throughout  the  world  with  death.  4  Bl.  Com.  194,  236 

The  contempts,  that  are  thus  punished,  are  either  direct^ 

&c.  or  else  are  conseqicential.  4  Bl.  Com.  283,  245 

• 

NOTES    ox   smith's    EDITION   OF   THE   LAWS   OF   PENN- 
SYLVANIA. 

Whether  a  sale  of  defendant's   lands,  under  a  youngey 
judgment,  affects   the  lien  of  an  older  one,  remains 
undecided.    1  Smith,  referring  to  a  dictum  of  judge  . 
Yeates,  2  Bin.  218,  258 

2  Smith's  Laws,  127,  -  -  -  -  262 

2  Smith's  Laws,  105,  -  -  '    ^n    '  -         264 

/■  /  /  >^ 

The  juror's  oath  altered  by  act  of  21st  March,  1806,  279 

An  enquiry  into  the  causes  of  that  obloquy,  under  which 
the  supreme  court  of  this  state  laboured  from  the 
year  1800,  down,  durmg  a  period  of  several  years,  282 

On  the  naturalization  laws  of  congress,  and  the  principle 

involved  in  the  right  of  expatriation,  290 

On  certain  acts  of  congress,  and  the  construction  put  upon 

those  acts  by  the  courts  of  the  United  States,  296 

On  the  extent  of  the  judicial  power  of  the  courts  of  the 

United  States,  305 

Of  errors,  as  it  would  seem  to  me,  in  decisions  of  the  su- 
preme court  of  the  United  States,  307 
M'llvaine  V.  Coxc's  lessee.  2  Cranch,  280,  -  -  318 
Simms  and  Wise  V.  Slacum.  3  Cranch,  300,  -  -  321 
The  United  States  v.  Fisher  et  al.  assignees  of  Blight,  326 
Rhinelander  v.   Insurance    company  of  Pemisylvania.    4 

Cranch,  29,  336 

Ex  parte  Bollman,  and  ex  parte  Swartwout.  4  Cranch,  75,  338 

Craudson  and  others  v.  Leonard.  4  Cranch,  434,             -  342 

The  United  States  v.  Judge  Peters.  5  Cranch,  115,           -  361 

Pierce  v.  Turner.   5  Cranch,  154,               -             -             -  375 

Hepburn  and  Dundas  v.  Aukl.  5  Cranch,  262,         -         -  377 

United  States  V.  Evans.  5  Cranch,  280,             -         -         -  37S 

O'Neal  V.  Thomton.  6  Cranch,  53,             -             -           -  38d 

Chesapeake  Insurance  Company  v.  Stark.  6  Cranch,  268,  385 

Notes    relative  to    judge   Tucker's    commentary  on  the 

constitution  of  the  United  States,  387 

On  the    construction  of  art.  4,  sec.  4,  of  the  constitution 

oi  tlie  United  States,       ,,      ^     n     i     /i  -^90 


/^/^> 


^ 


CONTENTS. 


Pagj^, 


tvo-iES     ON      BLACKSTONK's     COMMENTARIES,     StC. 
SKCOND    SEKIKS. 

The  customs  of  London  arc  confirmed  by  an  act  of  par- 
liament.  1  Bl.  Com.  75,  3ftS 
Penal  statutes  must  be  construed  strictly.   1  BI.  Com.  87,           396 
Sheriff—.  IBI.  Com.  339,             -             -             -             .401 
lor  it  is  a  principle  of  universal  law,  that  the  natural 
born  subject  to  one  prince,  cannot,  by  any  act  of  his 
own,   no,  not  by   swearing  allegiance  to  another,  put 
off  or  discharge  his  natural  allegiance  to  the  former, 
kc.  &c.   1  Bl.'Com.  369,  404 
riic  case  of  Clark,  sentenced  as  a  spy,  remarked  upon,  409 
Extract  of  two  notes  of  Mr.  Duponceau,  under  the  head 

of  allegiance,  415 

These  are  the  principal  distinctions  between  aliens,  deni- 
zens, and  natives  ;  distinctions  which  it  hath  been  fre- 
t[uently  endeavoured,  since  the  commencement  of  this 
century,  to  lay  almost  totally  aside  by  one  general  na- 
turalization act,  for  all  foreign  protestants.  1  Bl. 
Com.  374.,  418 

'i'his  venerable  body  of  men,  being  separate  and  set  apart 
from  the  rest  of  the  people,  in  order  to  attend  more 
closely  to  the  service  of  Almighty  God,  have  there- 
upon large  privileges  allowed  them  by  our  numicipal 
laws.   1  Bl.  Com.  376,  42Q 

There  are  two  kinds  of  divorce,  the  one  total,  the  other 

partial.   IBI.  Com.440,  421 

The  constitution  of  feuds  had  its  origin  from  the  military 
policy  of  the  Northern  or  Celtic  nations.  It  was  brought 
by  them  from  their  own  countries.  Sec.  2  Bl.  Com.  44,         422 
Kscheat.  2  Bl.  Com.  72,  .  .  .  .         424 

Ijjither  might  have  been  referred  the  advantages  which 
used  to  arise  to  the  king  from  the  profits  of  his  milii 
tary  tenures,  to  which  most  lands  in  the  kingdom 
were  subject,  until  the  statute  12  Car.  2.  c.  24, 
Avhich,  in  a  great  measure,  abolished  them  all.  2  Bl. 
Com.  286,  ^    426 

As  to  the  power  of  charging  lands  with  the  debts  of  the 

owner.  2  Bl.  Com.  289,  427 

Justices  of  the  peace.   1  Bl.  Com.  349,  r  -  429 

An  estate  tail  may  be  barred,  or  destroyed  by  a  tine,  by  a 

common  recovery,  Sec.  2  Bl.  Com.  116,  435 

By  the  statutes  31  Hen.  8.  c.  1.  and  32  Hen.  8.  c.  32.  joint 
tenants,  Sec.  are  compellable  by  writ  of  partition  to 
divide  the  lands.  2  Bl.  Com.  185,  435 

Where  there  is  tb.^  least  probable  cause  to  found  such 

prosecution  upon.  3  Bl.  Com.  126,  43? 

\\\  itissi^e  of  iiuisancc.  3  Bl.  Coin.  220,  -  -.  438 

vVhcrcby  ho  is  endamaged  to  such  a  value.  3  Bl.  Com.  295,         457 
I'iie  whole  of  tliis  prGf:e3S}  is  deiiominatcd  the  plej^ding. 

7  Rl.  Coin.  710/  "  4ji9 


CONTENTS. 


Page, 


A  common  juty  is  one  returned  by  the  sheriff  according 

to  the  direction  of  the  statute 

As  the  jurors  appear  when  called,  they  shall  be 
sworn,  unless  challenged  by  either  party.  3  Bl.  Com. 
358,  -  46o 

Thus  much  for  costs  to  which  judgments  are  a  neces- 
sary appendage.  3  Bl.  Com.  339,  46^ 

The  king  (and  any  person  suing  to  his  use)  shall  neither 

pay  nor  receive  costs.  3  Bl.  Com.  400,  466 

To  this  real  sullennessj  but  affected  timidity  of  the 
judges,  such  a  narrowness  of  thinking  was  added,  that 
every  slip  (even  of  a  syllable  or  letter)  was  now  held 
to  be  fatal  to  the  pleader,  and  overturned  his  client's 
cause.  3B1.  Com.  4lO  467 

Habere  facias  seisinam,  or  writ  of  seizon  of  a  freehold. 

3  Bl.  Com.  4 12,  469 

And  thus  lastly,  for  the  sake  of  a  more  beneficial  and  com-     ' 
plete  relief,  by  decreeing  a  sale  of  lands.    3  Bl.  Com. 
439,  471 

An  answer  is  the  most  usual  defence  that  is  made  to  a 
plaintiff's  bill.     It  is  given  upon  oath— — 

In  almost  every  case,  the  plaintiff  may  demand  the 
oath  of  his  adversary.  3  Bl.  Com.  446,  473 

By  the  ancient  common  laAV,  there  was  a  gi*eat  latitude 
left  in  the  breast  of  the  judges,  to  determme  what  was 
treason,  or  not  so  :  whereby  the  creatures  of  tyranni- 
cal princes  had  opportunity  to  create  abundance  of 
constructive  treason.    4  Bl.  Com.  75,  ^T-i 

In  civil  cases  we  have  seen  that  every  defendant  is  bail- 
able;  but  in  criminal  7natt era  it  is  otherwise.  4  Bl. 
Com.  296,  502 

All  presumptive  evidence  of  felony  should  be   admitted 

cautiously..  4  Bl.  Com.  o5B,  503 

OBSERVATIONS   ON   ACTS   OF   ASSEMBLY   THAT   MAY   BE 
REPEALED    OR    MODIFIED. 

Act  of  3d  December,  1782,  .  -  _  .  510 

An  att  to  regulate  arbitrations  and  proceedings  in  courts 

of  justice,  513 

Actofassemby  21st  March,  1806,  §  13,         -  -  -  515 

Actof  assembly  March  19th,  1810,  -  -  -  522 

On  the  judiciaiy  system  of  the  state,         -         .         .  .         526 

Hints  towards  a  general  law  on  the  subject  of  writs  of 

error,  509 

Opinion  on  a  curious  question  of  practice             -  -          53J 

Opinion  in  the  case  of  Lessee  of  Ziebach  v.  Morgan,  538 

Respub  V.  M'Lean,             -            -             -             -  .^         54.; 

On  the  granting  new  trials,         .             -         -          .  .         549 

Observations  to  the  student  on  the  practice  of  the  lawi  560 

Conclusion,            -            -            -            -            -  =ir' 


PREFATORY  OBSERVATIONS. 

IT  struck  me  some  time  ago  that  it  would  be  a  worl:  of 
Utility  for  the  Student  of  the  Pennsylvania  law  ;  and  also  aa 
exercise,  or  disquisition  not  without  benefit  to  the  judge  him- 
self, to  examine  in  what  particulars,  the  common  and  statute 
law  of  this  state  was  different  from  that  of  the  common,  or 
Statute  law  of  England.     This,  it  seemed  to  me  might    be 
best  done  by  taking  up  the  commentaries  of  Blackstone,  and 
by  notes  to  the  text,  marking  these  variations.     Pursuing  this 
thought,  it  occurred  to  me  that  an  edition  might  be  given  un- 
der the  title  of  the  J'ennsylvania  Blackstone,     Accordingly 
I  had  begun,  and  proceeded  some  length ;  writing  out  an  intro- 
duction to  such  proposed  edition;  and  some  chapters  tending 
to  throw  light  on  the  connection  between  the  law  as  it  is  in 
England,  and  with  us ;  moreover  going  on  with  notes  to  par- 
ticular passages  in   the  pages  of  the  commentaries  as  they 
came  in  order.     But,  on  reflection  it  occurred  to  me  that  a 
printer  would  not  be  likely  to  find  his  account  in  publishing 
such  an  edition.     For  though  like  an  almanac  calculated  for 
a  particular  latitude,  it  might  without   sensible  variation  ia 
Some  parts,  serve  others,  yet  the  bulk  of  the  notes^  or  observa- 
tiotiSy  having  a  respect  to  the  law  of    Pennsylvania  only,  it 
must  be  confined  in  a  great  degree  to   the  students   of  this 
state;  and  these,  though  daily  growing  in  number,  could  not 
be  supposed,  for  a  great  length  of  time  to  be  sufficient  to  take 
off  such  an  edition,  even  supposing  it  to  supersede  with  them, 
any  other.     It  was  more  than  I  could  expect,  even  though  a 
part  of  the  notes  of  judge  Tucker  to  his  Virginia  edition 
could  be  added,  but  which  from  the  copy  right  under  Con- 
gress, a  publisher  would  not  be  at  liberty  to  do. 

It  seemed  to  me  also,  that  a  principal  advantage  of  the  re- 
marks which  I  found  myself  led  to  make,  were  present  and 
tempo rartf  ;  so  far  at  least  as  respected  the  succensive  a- 
mendments  of  the  law  by  the  legislature  of  this  state,  or  the 

A 


ii  Prefatory  Observations. 

particulars,  in  which,  speak'vig  with  deference^  they  appeared 
to  have  intermingled  some  things  in  their  endeavours  to  im- 
prove the  law,  not  altogether  coinciding  with  my  ideas  of  good 
policy,  or  general  convenience.  If  so,  it  might  not  be  la- 
bour lost  to  suggest  to  the  legislature  for  the  time  being ; 
or  to  the  people  from  amongst  whom  they  must,  from  time 
to  time  be  chosen,  what  might  seem  advisable  to  be  a  subject 
of  their  consideration,  as  they  might  be  led  to  consider  the 
law  generally,  or  particular  acts  which  had  already  passed, 
or  Were  meditated  to  be  passed  in  future. 

These  were  my  reasons  for  dropping  the  idea  which  I 
had  at  first  entertained  ;  and  confinmg  myself  to  a  narrow- 
er compass  ;  but  more  especially  as  I  found  that  I  would 
not  hare  leisure  from  my  ojjxcial  duties  to  bestow  much  time 
upon  this  collateral  object ;  and  in  that  case,  it  was  not  likely 
that  I  could  live  to  finish  it. 

"  Vitae  summa  brevis  spem  nos  vetat  inchoare  longam." 
Perhaps  also  I  might  add  without  an  affectation  of  mo- 
desty, that  upon  experiment  I  was  not  quite  sure,  that  it  was 
not  an  undertaking  beyond  my  strength  ;  or  at  least  that  it 
would  be  thought  so.  Or  even  if  not  always  thought,  yet 
abundantly  saidi  I  will  not  say,  sung,  amongst  the  profes- 
sion. For  what  is  extrajudicial  cannot  expect  the  same  quar- 
ter from  the  learned  of  the  law,  as  that  which  the  judge  is 
bound  to  express,  let  it  be  right  or  wrong.  He  is  consider- 
ed as  a  volunteer,  in  what  is  said  off  the  bench ;  and  his 
opinion,  or  notions  as  they  will  perhaps  be  termed,  are  can- 
vassed with  less  deference.  Hence  perhaps  the  propriety  of 
a  judge  leaving  to  a  posthumous  publication,  such  lucubra- 
tions as  may  have  employed  his  time.  But  the  secret 
of  my  resignation  on  this  occasion,  is  the  not  considering 
myselt  as  having  attained  such  a  height  of  reputation,  that 
if  I  did  not  add  to  it,  I  must  descend  from  it.  Not  that 
I  will  affect  not  to  have  deserved  reputation ;  for  I  hate  af- 
fectation in  any  shape ;  but  not  possessing  any  great  cele- 
brity on  this  head,  it  has  not  been  fashionable  to  overrate 
the  small  talents  which  I  may  possess.  And  to  this  I  have 
been  most  cordially  reconciled ;  because,  in  troublous  ttmes^ 


Prefatory  Observations.  i^ 

it  is  safest  to  court  the  shade.     And  I  have   long  since  seen, 
the  vanity  of  human  ambition.     If  so,   it  will  be  said,  why 
do  I  write  at  all  ?    Does  it  not  argue  some  wish  to  please  ? 
For  profit  cannot  be  an  object  in  such  a  performance.  When 
I  analyze  my  own  feelings,  I  find  it  to  be  at  bottom   in  a 
great  degree  the  same  principle  which  induced  me,  when  a 
child  to  build  houses  of  chips  ;  or  when  a  boy  more  grown 
to  make  a  dam  across  a  small  stream,  and  to  place  a  water 
wheel  of  thin  boards  to  receive  the  fall.     And  this  kind  of 
pleasure  in  seeing  the  work  of  one's  hands,  "  that  it  is  good,'^ 
would  seem  to  be  an  emanation  of  the  divine  mind  implant- 
ed in  man,   prompting  him  to   improvements,   in  his  small 
sphere,  and  according  to  the  limited  capacity  of  his  inven- 
tion.    But  it  is  this  principle  whicli-  distinguishes  him  from 
the  brutal  world,  and  is  the  foundation  of  his  happiness;  as 
well  as  an  evidence  of  his  superior  nature.  At  the  same  time, 
I  do  not  doubt,  though  I  cannot  so  well  recollect,  that  there 
was  a  secret  consideration  mixed  with  the  amusement,  that 
some  one  would  see  what  I  had  done.     So  that  man  or  boy, 
in  literary  or  baby  edifice,  there  is  something  of  the 
'■'    ■-■  qua  me  quoque  passim 


Tollere  humo^- 


At  the  bottom   of  every  undertaking* 

Scire  tuum  nihil  est  nisi  te  scire  hoc^  sciat  aher* 
On  a  desert  island  without  hope  of  society,  one  would  read' 
or  write   little.      But  it    is  not    the   motive    that  will    be 
called    in    question,    or    ought  to  be,  but    the   execution;^ 
though   a  good  motive    may   form   some   excuse  with  the 
indulgent,  and  blunt  the   edge  of  censure ;    or  at  least  it 
is  with  this  view  that  it  is  urged,  though,  perhaps  with  not 
much  effect.     It  is  probably  not  much  more  than  to  say  in 
convefsation ;   you  will  excuse   my  detaining  you,  or  I  beg 
pardon  for  the  trouble  I  have  given.     Bat   even  this  is  con- 
ciliatory, and   is  a  compliment  which  decency  exacts  for  the; 
attention  with  which  v^'e  have  been  heard=. 


PARTICULAR  tNTROI>UC TION  TO  THESE 
MISCELLANIES. 

THE  following  notes  and  observations  might  seem  to 
imply  some  presumption  of  thinking  to  instruct  the  learned 
in  the  laxv^  were  I  flot  to  disclaim  this  pretension,  and  pro- 
fess myself  to  mean  nothing  more,  than  to  instruct  the  StU' 
dent,  and  less  learned  in  the  legal  science.  In  fact,  the  occa- 
sion of  most  of  these  things  was  to  assist  one  studying  under 
my  direction.  It  is  unnecessary  to  say  whether  it  was  a 
son  or  another  person.  But  being  dictated  to  him  or  noted, 
and  copied  by  him,  it  appeared  to  me  that  they  might  be  also 
of  some  use  to  others.  I  will  acknowledge  that  I  had  also 
another  view  in  giving  them  publicity.  It  seemed  to  me 
that  there  were  some  of  the  observations  which  might 
be  brought  before  the  eye  of  the  Legislature  of  this  state, 
tvith  a  view  to  supply,  abrogate,  or  amend  acts  of  assembly. 
This  was  unquestionably  a  primary  motive  with  me  in  the 
publishing  j  and  I  cannot  but  flatter  myself,  if  they  will 
deign  to  attend  a  little  to  the  collection,  they  will  be  able  to 
pick  out  something  that  may  be  useful. 

At  the  same  time  there  are  many  things  which  I  cannot 
but  think  may  be  useful  in  other  states  of  the  Union ;  though 
chiefly  calculated  for  that  of  Pennsylvania,  looking  to  its  laws 
and  jurisprudence.  I  had  once  entertained  as  has  been  said, 
the  idea,  of  preparing  for  the  press, and  publishing  what  might 
be  called  the  Pennsylvania  Blackstone.  That  was  in  fact,  an  edi- 
tion ©f  Blackstone's  Commentaries,  with  notes  in  the  manner 
of  Tucker,  referring  to  thevariationsin  the  law  as  it  is  in  the 
state  of  Pennsylvania  from  that  of  England :  the  variations  in 
the  introduction  to  the  common  law,  and  in  the  statute  law  as  it 
ha&been  changed,  or  superseded,  by  our  acts  of  assembly.  But 
this  appiiared,  upon  more  deliberation,  and  experience  of  the 
task,  to  be  a  work  foir  which  my  official  duties  did  not  leave 
sufficient  leisure.  I  have  therefore  thought  proper  to  con- 
tract the  design,  and  leave  it  to  some  one  more  learned  in 
the  law,  or  having  more  leisure  that  may  come  after.     Some 


Particular  Introduction.  -vt 

outline  of  the  law  of  Pennsylvania  in  the  manner  of  Black- 
stone,  would  seem  to  me  a  desideratum  for  the  student,  and 
would  be  of  use  to  the  legislature.  There  was  also  another 
objection  to  such  undertaking,  witliout  legislative  aid.  For, 
being  more  peculiarly  intended  for  the  use  of  an  individual 
state,  a  sale  could  not  be  expected  to  be  so  general,  as  would 
secure  a  certainty^  or  even  a  probability  of  defraying  the 
expenses  of  a  Avhole  edition.  These  miscellanies  are,  in  fact, 
therefore,  nothing  more  than  some  materials  out  of  which  ^ 
such  a  work  might  be  composed,  or  notes  of  some  of  which, 
such  an  edition  of  the  Commentaries  might  consist. 

It  had  been  my  plan,  with  the  one  studying  under  my 
direction,  at  the  third  reading  of  the  Commentaries  to  note,  in 
loco,  the  variation  of  our  common  law  from  that  of  England, 
as  not  having  been  introduced,  originally  here  j  or  as  having 
been  altered  by  our  owh  statutes  ;  referring  for  this  purpose, 
to  acts  of  Assembly,  and  to  the  reports  of  judicial  decisions. 
Before  this,  at  the  second  readings  I  had  referred  him  to  the 
decisions  of  the  English  courts^  chiefly  such  as  are  cited  in 
the  margin  of  the  Commentaries  ;  so  that,  in  reading  these, 
the  bulk  of  the  reporters  in  England  were  consulted ;  and 
referring  to  the  acts  of  Assembly,  and  the  reports  of  deci- 
sions in  this  state,  these  were  also  read ;  which,  whether  more 
or  less  pleasant,  is,  certainly,  the  oxAy  proji table  way  of  read- 
ing. A  particular  point  of  law,  or  practice,  is  fixed  upon 
the  memory,  by  thus  dwelling  on  it  and  referring  to  several 
books.  The  reason  of  the  principle  also,  as  a  part  of  the 
science,  is  better  understood. 

Be  this  as  it  may,  it  will  account  for  my  labour  ;  which 
might  otherwise,  appear  somewhat  extra  to  my  judicial  oc- 
cupation ;  and  will,  at  all  events  relieve  me,  in  some  degree, 
from  the  imputation  of  considering  myself  as  having  such 
pre-eminence  in  legal  knowledge,  that  I  could  undertake  to 
write  notes  on  a  legal  code  ;  and,  not  rather  leave  it  to  those, 
some  of  whom,  at  the  bar,  I  could  point  out,  as,  if  not  having 
more  leisure,  have  unquestionably  more  ability.  It  is  not 
from  affectation  that  I  premise  this  ;  but,  on  the  ground  of 
self'preservatiQn*    For  there  is  nothing  that  produces  person- 


vi  Particular  Introduction. 

al  dislike,  and  very  deservedly,  so  much  as  the  assuming  con- 
sequence. We  see  it;  in  society,  and  feel  it  every  day.  It 
behoves  a  man  that  would  be  safe  from  remark  or  injury,  to 
conduct  himself  with  humility  ;  a  lesson  which  is  taught 
only  late  in  life^  and  when  one  begins  to  find  that  the 

■  ■  ■«■   fallentia  semita  vita: 

Is  rather  to  be  chosen  than  a  glare  of  reputation.  It  is  no 
doubt  pleasing  to  the  mind,  to  have  some  reputation  above 
the  common  level.  But  it  poisons  all  enjoyment  of  this,  if 
it  is  not  conceded  with  the  good  will  of  others.  But 
enough  of  this ;  it  will,  not  suffice  to  make  up  a  book  of  law 
with  moral  reflections. 


INTRODUCTIOH 

TO 

WHAT  MIGHT   BE  CALLED 
THE 

PENNSYLVANIA  BLACKSTONE. 


IT  must  be  the  result  of  every  man's  experience,  that  hap.- 
piness  consists  in  the  employment  of  the  mind  upon  some 
object,  the  attainment  of  which,  calls  forth  the  energies  of 
thought,  or  action.  So  that  I  consider  the  poet,  as  not  go- 
ing the  whole  length  of  the  foundation  of  happiness,  when  he 
says, 

"  Reason's  whole  pleasure  ;  all  the  joys  of  sense. 
Lie  in  three  words,  health,  peace,  and  competence."* 
For  though  without  these,  little  pleasure  can  be  enjoyed  ^ 
yet,  even  with  these,  little  can  be  enjoyed,  where  there  is 
wanting  an  occupancy  of  the  mind.  Hence  it  is,  that  Aris- 
totlef  places  happiness  in  mental  energy;  an  opinion  says  he, 
*■''  ancient  and  universal  among  philosophers."  The  same 
thing  is  abundantly  inculcated  in  that  collection  of  wise  say- 
ings, which  are  ascribed  to  the  Jewish  King,  Solomon,  as 
meditated  by  himself;  or,  compiled  under  his  direction.  It 
will  be  seen  from  that  divine  composition,  that  the  employ- 
ment of  the  mind  in  virtuous  action^  is  the  means  of  happi- 
ness in  this  life  ;  while,  on  the  contrary,  idleness  is  as  covxr 
fortless  in  itself  as  it  is  disreputable,  iathe  opinion  of  men, 

*  Pope. 

t  Gillies  254. 


viii  Introduction. 

The  historian  Sallust,  in  his  introduction  to  the  Bellum 
Catilinarium,  expresses  the  same  idea :  "  *  truly,  he  truly^  at 
length,  appears  to  live,  and  enjoy  life,  who  intent  on  some 
business,  seeks  the  reputation  of  some  excellent  achieve- 
ment, or  good  art !"  This  is  a  sentence  which  may  be  called 
golden  ',  and  would  deserve  to  have  been  inscribed  on  a  co- 
lumn ;  or,  over  the  gate  of  a  temple  by  antiquity.  For  the 
employment  of  the  mind,  on  some  object  of  pursuit,  is  ne- 
cessary to  happiness.  This  is  the  nature  of  man,  and  the  la- 
bourer who  earns  his  daily  subsistence,  enjoys  a  greater  por- 
tion of  felicity,  than  the  listless  and  vacant  mind,  which  has 
no  design  to  execute,  and  nothing  to  do.  Give  me  an  em- 
ployment, or  a  profession,  therefore,  is  the  cry  of  nature  to 
every  one  that  has  the  conduct  of  youth. 

The  profession  of  the  law  under  a  Republican  Govern- 
ment, not  only  leads  to  emolument,  but  qualifies  for  political 
eminence  ;  if  that  were  a  thing  desirable  for  one's  own  sake  ; 
which  it  is  not ;  but,  for  the  sake  of  the  public,  it  is  desira- 
ble. And  it  may  not  be  in  the  way  of  private  emolument, 
or  happiness,  for  one  of  the  profession  of  the  law,  to  give  his 
services  to  the  public,  on  a  special  occasion :  but  for  one's  own 
sake,  I  have  said  that  political  distinction  is  not  in  gene- 
ral desirable.  It  is  to  the  youthful  of  the  profession,  chief- 
ly, that  the  glare  of  eminence  in  political  life,  is  at  all  captivat- 
ing: and,  from  the  fire  and  passion  of  that  age,  they  are  the 
least  fit  for  it.  I  count  therefore  him  who  confines  himself 
to  his  profession,  till  he  has  arrived  at  the  calm  of  years,  as 
most  likely  to  consult  his  own  happiness,  and  at  the  same 
time,  the  interests  of  the  public.  For  it  cannot  well  be,  that 
before  this  time,  he  has  acquired  an  independence  of  estate ; 
and  much  less,  that  he  possesses  that  self-denial,  and  humi- 
lity of  spirit,  which,  experience  in  life,  gives  ;  so  as  to  ren- 
der him  a  useful  member  of  a  deliberative  body. 

But  eloquence  at  the  bar,  gives  great  distinction.  The 
name  of  the  orator  is  not  heard  so  much  abroad  ;  but,  in  pro- 

*  «  Vcrum,  enimvero,  is  mihi  demum  \'ivere,  et  frui  vita  vi- 
detur,  qui  aliquo  negotio  intentus,  praeclari  .facinoris,  aut  bonae 
artis,  famam  quserit.'* 


Introduction.  it 

portion  as  his  fame  is  concentrated,  it  burns  the  more  steadily 
at  home.  It  is,  in  the  respt  ct  of  those  alone  who  are  near- 
est us,  and  with  whom  we  are  conversant,  that  we  find  enjoy- 
ment.    A  sphere  more  or  less  extensive  is  of  little  moment. 

But  it  is  at  the  bar,  that  eloquence  has  the  fairest  scope  ; 
and,  the  most  powerful  effect.  In  the  councils  of  the  state, 
or  of  the  nation,  two  formed  parties  will  invariably  prevail. 
The  representative  who  does  not  range  himself  with  one  of 
these,  can  be  of  no  account  j  he  is  heard  by  no  one  ;  because 
it  is  not  what  is  reason,  or  good  policy,  that  is  considered  ;  but 
what  has  been  the  previous  determination  of  the  party,  or  their 
leaders,  out  of  doors.  A  speaker  must  know  it  therefore  to  be 
unnecessary  to  address  those  on  the  same  side  with  himself;  for 
they  are  already  persuaded  :  and  with  regard  to  those  on  the 
opposite  side,  it  must  be  the  same  thing  as  urging  arguments 
to  the  v/alls.  Hence  it  is,  that,  unless  an  individual  can  be 
at  the  head  of  a  party,  and  lead  it,  he  has  little  occasion  for 
judgment ;  and  none  for  eloquence.  It  is  but  a  vain  decla- 
mation on  the  side  that  he  is,  as  a  champion  of  their  opinions  ; 
but  without  the  least  prospect  of  moving  any  one. 

At  the  bar,  on  the  contrary,  a  court  or  jury  are  to  be 
persuaded.  Were  not  even  conscience  to  secure  this  for  the 
speaker,  in  the  breasts  of  Judges,  and  jurors  ;  yet,  respect 
for  themselves,  and  their  reputation  amongst  men,  would,  in 
general,  secure  it.  For  they  are  considered  as  deciding  or 
giving  a  verdict,  according  to  the  right  or  the  xvrong  of  the 
case  ;  and  the  credit  of  their  understandings  will  d.'pend  up- 
on it.  Hence  it  is  that  having  the  human  mind  to  deal  with, 
free  and  unembarrassed  as  to  the  question,  there  is  an  en 
couragement  to  employ  the  resources  of  the  orator,  in  can- 
vassing the  law  or  fact  under  consideration. 

It  may  be  worth  while  for  me,  now,  to  say'a  few  words  on 
the  qualifications  of  a  Lawyer.  Integrity  is  unquestionably, 
the  first  qualification;  the  love  of  truth  and  justice.  Without 
a  consciousness  of  virtue,  what  man  can  even  stand  erect  and 
present  hi.nself  with  a  proper  posture  of  !)ody?  but  can  he 
open  his  countenance^  and  shew  that  he  is  himself  persuaded 
of  what  he  says?  Can  he  evince  that  indignation,  against  in- 

R 


X  Introduction. 

justice,  which  the  heart  does  not  feel  ?  It  is  impossible  to 
have  a  confidence  in  one's  self,  unless  conscious  of  integrity. 
Hence  it  follows,  that  it  is  of  the  highest  consequence,  that 
from  the  earliest  years,  the  mind  of  one  intended  for  an  ad- 
vocate, should  be  formed  to  virtue.  Such  is  the  connexion 
between  mind  and  body,  that  the  feelings  of  virtue  are 
thought  to  contribute  to  health,  and  longevity ;  but,  certainly, 
to  strength  of  intellect,  and  boldness  of  elocution.  No  man 
can  be  great  in  any  profession,  much  less  in  that  of  the  law, 
without  a  soul  of  benevolence  and  truth.  It  is  a  vulgar  error, 
that  parts  alone,  meaning  powers  of  understanding,  can  ren- 
der great,  in  a  moral  science.  The  affections  of  the  heart 
have  so  much  to  do  in  sustaining  right,  and  opposing  wrong, 
that  if  these  are  depraved,  nothing  great  can  exist.  The  in- 
discriminate defence  of  right  and  wrong  in  the  practice  of 
the  law,  is  thought  to  deprave  the  mind.  This  impression 
which  prevails  much,  arises  from  a  misconception  of  the  du- 
ty, and  the  usual  conduct  of  the  profession.  I  have  no  idea 
but  that  a  lawyer,  for  his  own  sake,  in  giving  counsel,  will 
advise  to  the  best  of  his  abilities ;  and  in  taking  the  cause 
of  a  defendant,  will  point  out  to  him  the  weakness  of  his  de- 
fencL',  if  tht  re  is  a  weakness  ;  that  the  client  may  compromise, 
and  avoid  costs.  But  it  is  his  duty,  if  a  defendant  persists, 
to  undertake  his  cause  ;  and  to  present  it  to  the  best  advan- 
tage ;  and  this  in  order  to  save  him  from  the  recovery  of 
more  than  ought  to  be  recovered  against  him  ;  and  from  ex- 
cess of  damages.  For  it  being  presumed,  that  a  plaintiff  having 
had  his  choice  of  advocates,  has  chosen  the  ablest, a  defendant 
might  be  oppressed  by  the  talents  against  him  ;  and  it  is  im- 
possible for  a  Court  and  Jury  to  reach  the  whole  truth,  and 
hit  exact  justice,  unless  the  law,  or  facts  of  a  case  are  well 
discussed  on  Loth  sides.  The  pleading  and  counter  plead- 
ing of  advocates,  is  a  great  help  to  the  comprehending  what 
is  equal  in  the  meum  and  luum  of  actions. 

In  the  case  of  a  plaintiff  client,  it  is  always,  in  the  power 
of  a  Lawyer,  to  decline  the  cause ;  if,  on  the  plaintiff's  own 
shewing,  it  is  not  maintainable  :  and  it  is  his  duty  to  decline 
it.    Nor  can  I  suppose,  that  he  will  not  decline  it,  for  his  own 


Introduction.  xi 

sake ;  since  the  failing  in  a  suit,  brings  some  disreputation 
upon  a  counsel;  and  is  at  least  unpleasant.  But  it  dous  not 
follow  that  because  a  plaintiff  has  failed  in  his  suit,  he  had  not 
reason  to  think,  and  so  presented  it  to  his  counsel,  as  having 
a  good  cause  of  action.  For  evidence  mnj'^  have  failed  him 
which  he  expected  to  procure;  or  that  may  be  brought 
against  him  of  which  he  had  not  a  knowledge.  It  is  not  safe 
for  counsel;  or,  justifiable  in  them,  to  decline,  in  a  matter  of 
meum  and  tuum,  and  to  undertake  to  say  what  is  the  justice 
of  the  claim  ;  for  he  may  err  in  his  judgment  of  the  law  ;  and 
it  is  his  business  to  serve  his  client,  in  bringing  forward  his 
case,  before  the  proper  judges  ;  and  presenting  it  to  the  best 
advantage,  that  it  mav  receive  a  determination.  I  have  no 
idea,  that  so  doing,  the  counsel  identifies  himself  with  the 
cause  ;  or  makes  the  morality  of  it  his  own ;  nor  does  he  feel 
that  he  does  ;  though  it  is  impossible,  but  that  in  a  matter  of 
dubious  controversy,  he  may  have  a  leaning  in  favour  of  that 
side  which  he  espouses  ;  and  it  is  necessary  that  he  should, 
in  order  to  sustain  the  balance  of  a  like  leaning  on  the  other 
side.  But,  if,  in  forming  a  verdict,  juries  will  hang  ;  or,  in 
deciding,  judges  will  differ,  does  it  not  prove  that  the  right 
and  wrong  of  the  case,  is  not,  always,  so  clear  that  counsel 
could  pronounce  upon  it,  undertaking  it,  that  it  was  a  clear 
matter.  So  far  from  it,  that,  such  is  the  imperfection  of 
human  investigation,  and  even  judgment,  that  the  truth  or 
justice  of  the  case  is  not  always  reached.  But,  this  I  will 
say,  that,  if  at  all  attainable,  it  will  be  owing  in  a  great  de- 
gree, to  the  advantage  of  an  able  discussion  by  counsel  on 
both  sides,  presenting  their  respective  cases,  in  the  best  point 
of  view,  for  their  several  clients. 

It  is  not  to  be  understood  that  I  would  countenance  so- 
phistry, or  quibbling,  in  attempting  to  persuade  a  court  or 
jury  ;  for  no  wise  counsel  will  attempt  this,  as  he  must  know 
that  it  cannot  prosper.  He  may  sail  close  upon  the  wind, 
in  pressing  a  point ;  but  not  in  the  xvbicPs  eye  ;  for  if  he  does, 
to  make  use  of  a  nautical  phrase,  his  sails  are  instantly  aback, 
and  he  will  make  no  progress.  Much  less,  in  the  conduct 
of  a  suit,  do  I  take  into  view,  what  I  reprobate,  the  catches 


\n  Introduction. 

of  those  whom  I  disclaim  as  lawyers,  w  ho  avail  themselves 
of  ihe  slips  of  counsel ;  and  would  take  advantage  of  a  mis- 
take. Ihese  may  be  said  to  carry  on  the  legal  war,  not 
according  to  the  laws  of  civilized  practice,  but  resembling 
savages,  who  make  their  attacks  unseen,  which  is  a  species 
of  assassination.  This,  at  the  same  time,  is,  in  general,  as 
useless  as  it  is  vexatious  ;  for,  in  most  cases,  it  can  give  but 
the  trouble  of  an  application  to  the  court  to  set  right,  on  the 
payment  of  costs,  and  at  the  expense  of  the  counsel  who  had 
not  been  duly  vigilant.  But  these  things  are  not  known,  but 
amongst  the  illiberal,  who  are  at  the  foot  of  the  profession. 
A  nice  and  delicate  sense  of  honour,  and  a  contempt  of  undue 
advantage,  that  affects  not  the  merits,  is  the  characteristic  of 
the  noble  minded  of  the  profession  ;  and  these  are  always  the 
ablest  as  they  are  the  fairest  in  practice. 

In  order  to  qualify  for  the  profession  of  the  law,  a  libe- 
ral educaticn  is  necessary.  For,  though  there  are  instances 
of  strong  minds,  that  are  but  little  indebted  to  a  liberal  edu- 
cation, making  tolerable  orators,  and  even  lawyers ;  yet,  it 
would  have  been  of  great  advantage  to  them,  to  have  possess- 
ed this.  For  something  like  a  universal  knowledge  of  lite- 
rary subjects,  would  be  desirable  ;  because,  in  proportion  as 
we  have  a  knowledge  of  subjects,  the  mind  is  enlarged.  For 
there  is  scarcely  a  subject  of  human  knowledge,  but  that 
when  the  mind  is  brought  to  bear  upon  a  point  of  at  least 
moral  discussion^  it  may  not  draw  something  from  it  to  illus- 
trate an  argument  or  fortify  a  position.  Not  that  I  would 
have  an  orator  to  be  able  to  support  a  thesis,  in  omni  scibilt 
et,  de  quolibet  ente;  but  I  would  require  some  general  infor- 
mation, on  almost  all  subjects  of  science  j  especially  that 
sphere  of  study  which  is  fashionable,  and  I  think  useful,  in 
our  system  of  education.  It  is  a  question  lately  agitated 
whether  the  acquisition  of  what  are  called  the  learned  lan- 
guages, is  useful.  The  perfect  command  of  one's  own  ver-^ 
nacular  tongue,  in  which  the  advocate  is  to  speak  or  write,  is 
certainly  necessary  ;  not  the  command  of  words  merely,  but  the 
delicate  selection  of  words,  and  choice  of  terms.     In  order 


Introduction.  xiik 

to  this,  it  is  necessary  to  understand  the  precise  meaning  of 
words ;  and  this  is  not  to  be  collected  from  dictionaries ;  so 
well,  at  least,  as  from  the  roots  of  the  words,  which  are  found 
in  those  languagf  s,  from  which  our  own  is  derived  ;  and  of 
which  it  is  in  a  great  measure  made  up,  and  composed. 
These  are,  of  the  ancient  languages,  the  Latin  and  the 
Greek  ;  of  the  modem,  the  French  and  the  German.  The 
farthest  way  about,  is  said  to  be,  oftentimes,  the  nearest  way 
home ;  and  in  order  to  be  master  of  the  English  language, 
I  would  think  it  the  shortest  course  to  endeavour  to  obtain 
a  knowledge  of  these ;  .and  more  especially  of  the  Latin  and 
the  Greek. 

But  by  studying  the  structure  of  these  languages  we 
learn  the  structure  of  our  own  ;  in  other  words,  the  gram- 
mar of  it;  and  nothing  can  contribute  more  to  the  richness 
and  abundance  of  expression,  in  our  own  tongue,  than  a 
knowledge  of  these  that  are  related  to  it.  But  the  transla- 
tion of  an  idea  from  one  language  to  another,  to  which,  in 
learning  a  language,  we  are  accustomed,  gives  a  facility  in 
conveying  an  idea  that  is  our  own.  And  hence  translation 
from  another  language,  orally,  or  in  writing,  is  an  easy,  and 
successful  introduction  to  the  speaking  and  writing  our  own. 

But  a  great  use  in  studying  the  analysis  of  language,  is 
the  habit  of  investigation  ;  it  being  of  all  things  the  most 
difficult  to  fix  the  attention  of  the  youthful  and  wandering 
mind.  The  tracing  etymologies  and  examining  the  concords 
of  speech,  and  the  structure  of  sentences,  is  a  good  exercise 
for  the  judgment  and  suited  to  the  understanding  of  early 
years. 

But  can  any  thing  contribute  more  to  form  a  taste  for 
st}de  than  the  study  of  these  models  of  language,  where  there 
is  every  ornament  and  grace  of  expression  :  strength,  at  the 
same  time,  which  will  depend  in  a  great  degree  upon  concise- 
ness  and  brevity :  perspicuity  also,  without  which  there  is 
neither  strength  nor  grace.  For  were  I  to  lay  down  a  rule 
of  style,  it  would  be  to  endeavour  to  obtain  a  precise  and 
clear  idea  of  what  is  to  be  said  ;  and,  to  express  it  rvif/i  the 
Utmost  brevity^  and  in  the  most  perspicuous  phrase  possible. 


iiv  Introduction. 

Where  one  is  master  of  chis,  but  >vhich  requires  much  pre- 
vious discipline  of  the  nriind,  a  diction  niay  be  uidulged 
with  the  embellishments  of  figure^  iind  xhcjiotutrs  oj  imaginO' 
tion.  But  until  this  rib  and  bone  of  clear  thought  is  obtaina- 
ble, all  garniture  but  wearies.  All  this  excellence  of  bre- 
vity, perspicuity,  and  grace,  is  distinguishable  in  the  classi- 
cal writings.  Hence  it  is  that  the  diction  of  a  good  classi- 
cal scholar  is  distinguishable  from  that  of  one  who  has  not 
had  the  advantage  of  this  education,  by  a  certain  flavour, 
and,  if  I  may  so  express  it,  raciness  of  diction  that  savours 
of  the  ancients.  This,  though  not  discernable  in  its  cause  in 
the  hearer,  is  felt  abundantly.  There  is  a  charm  in  such 
eloquence  that  is  not  equalled  by  him  whose  taste  has  not 
been  so  cultivated. 

But  it  is  not  the  etymon  of  radical  words,  merely,  that 
we  acquire  by  the  study  of  the  learned  languages  ;  or  even 
the  helps  to  form  our  taste  for  style ;  or  other  advantage  that 
has  been  hinted  at;  but  in  the  course  of  acquiring  these,  we 
get  impressed  upon  our  minds  many  fine  sentences,  and  ex- 
cellent maxims  of  good  sense  and  morality  with  which  the 
classic  writers  abound ;  and  these,  from  the  very  difficulty 
of  translating,  become  better  fixed  in  the  memory,  than  wliat 
is  obtained  with  more  ease  and  facility.  But  when  we  take 
into  view  the  ancient  mythology  to  which  in  our  writings 
there  is  yet  a  great  reference  ;  and  the  knowledge  of  an- 
cient history,  and  ancient  geography,  with  which  these  are 
connected;  and  which  can,  and  ought  to  be  studied  at  the 
same  time  ;  and  also  the  lessons  of  rhetoric  and  criticism, 
which  from  these  as  a  text  the  preceptor  will  explain,  I  do 
not  know  any  more  useful  system,  or  course  of  study  that 
can  be  taken.  I  would  think  it  an  up-hill  work  to  undertake 
to  make  a  lawyer  without  such  a  previous  course  of  study, 
and  such  acquisitions.  I  say  the  more  on  this  subject  be- 
cause it  is  a  prevailing  idea,  ^'\nc\\  favours  the  indolent^  that 
the  study  of  the  dead  languages  is  unnecessary.  It  is  true, 
that  from  the  slovenly  and  imperfect  manner  in  which  these 
languages  are  taught,  with  oftentimes  bad  pronunciation,  and 
false  quantity ;  and  also  from  the  neglect  of  them  after  the 


Introduction.  XV 

academy  is  left,  a  slur  is  brought  upon  that  part  of  the  sys- 
tem of  education.  But  it  behoves  that  the  acquaintance 
which  has  been  formed  with  the  classics  should  be  kept  up  ; 
"  Noctuma  versate  manu,  versate  diuma.'* 
For,  the  reading  the  divine  poets  in  these  languages,  and 
in  short  of  the  poets  in  general,  wonderfully  feeds  the  ima- 
gination, and  furnishes  the  orator  with  images  and  diction. 
This  brings  me  back  a  little  to  observe  that  the  whole  cir- 
cle of  the  belles  lettres,  or  what  is  called  polite  literature,  is 
necessarv  to  eloquence.  There  is  amongst  all  the  fine  arts, 
in  the  language  of  Cicero,  the  commune  vinculum  ;  and, 
looking  at  them  it  may  be  said,  in  the  language  of  Ovid  ; 

*'  Nee  una  facies  omnibus,  sed  qualem  decet  esse  sororum." 

Hence  these  are  called  the  sister  arts.  Runnington  in 
his  life  of  Sir  Mathew  Hale,  states  of  him,  that  when  weari- 
ed with  studving  law,  he  would  recreate  himself  with  Phi- 
losophy or  Mathematics  ;  alleging  "  that  no  man  could  be 
master  of  any  profession  without  having  some  skill  in  all  the 
sciences."  For,  it  will  not  be  understood  that  I  mean  to 
undervalue  tJtathematical  learnbig ;  which  is  so  universally 
admitted  to  be  necessary  to  assist  the  reasoning-  facultij^  as 
well  as  to  enlarge  the  sphere  of  knowledge.  But  I  say  the 
less  upon  this,  because  it  is  not  questioned ;  though  I  do 
not  think  it  a  study  proper  to  begin  with;  or  approve  of 
the  system  of  Pestallozi,  who  makes  it  precede  that  of 
L:mguages.  It  is  the  main  study  to  fit  the  mind  for  mecha- 
nical pursuits  ;  and  very  properly  constitutes  the  chief  stu- 
dy in  the  military  academies  ;  and  though,  doubtless,  a  public 
speaker  must  be  lame  without  a  general  knowledge  of  all 
the  parts  that  come  under  the  idea  of  mathematical  learning, 
yet  the  invention  and  imagination^  which  constitute  the  ora- 
tor, is  not  so  much  fed  from  this  source  ;  and  with  regard 
to  moral  truth,  which  is  the  soul  of  law,  it  has  nothing  to 
do.  The  only  practical  branch  of  mathematics,  of  which 
every  lawyer  ought  to  have  a  competent  knowledge,  is  that 
of  the  application  of  trigonometry  to  surveying ;  and  this 
for  the  purpose  of  understanding  the  designation  of  proper- 


xvi  Introduction. 

ty,  under  the  law  of  legal  tenures,  of  real  estate ;  and  thia 
cannot  be  without  a  knowledge  of  geometry,  and  the  doctrine 
of  angles. 

Having  incidentally  made  these  observations  I  go  on  to 
observe,  that  the  citadel  of  the  law  must  be  taken,  if  I  may 
so  express  myself,  by  regular  approaches  ;  the  difficulties  of 
it  must  be  encountered  at  long  shot.  Or,  to  lay  aside  a 
figure,  the  acquisition  of  this  science  must  be  rendered  easy 
in  the  first  advances  to  it,  by  a  gradual  introduction.  His- 
tory, ethics,  and  the  constitution  of  government,  or  politics, 
is  a  natural  and  easy  introduction  to  a  science  which  is  built 
upon  these.  And  applying  more  immediately  to  what  is 
called  jurisprudence  itself;  and,  especially  our  own  muni- 
cipal law,  much  will  depend  in  gaining  the  attention,  and  fa- 
cilitating the  progress  of  the  student,  from  the  course  of 
reading  that  is  pointed  out  j  under  which  I  would  recom- 
mend,, the  taking  these  commentaries*  as  a  last  task  ;  and 
to  read,  and  re-read  with  a  reference  to  the  authorities 
cited  ;  and  to  others  which  may  be  noted  ;  or  to  which  he 
may  be  directed;  essays  and  tracts,  or  particular  adjudi- 
cations. But  the  taking  up  abridgments  and  reports,  and 
reading  them  flush  through,  is  a  waste  of  time  ;  there  is  lit- 
tle left  impressed  upon  the  memory. 

By  such  introduction  and  course  of  study  as  I  have  hinted 
at,  rising  like  an  inclined  plane,  the  ascent  to  the  summit  is 
facilitated,  which,  when  once  gained,  the  hill  top  is  pleasant, 
and  it  becomes  delightful  to  look  down  upon  the  difficulties 
passed.  It  is  under  this  image  that  the  progress  to  a  habit 
of  virtuous  action,  is  represented  by  the  poet  according  to  the 
translation  of  some  one  : 

"  Vices  in  throngs  we  may  take  in  with  ease, 
Short  is  the  journey  and  full  nigh  they  dwell : 
But  in  the  road  of  virtue  toil  and  sweat, 
Th'  immortal  Gods  have  laid ;  long  is  the  path 
Thereto  and  uphill  straight :  and  at  the  first 
'Tis  rugged  all :  but  when  the  top  you  gain, 
Thence  smooth  it  lies."f 

*  Blackstone's.     f  Hcsiod, 


Introductioi*.  xvli 

But  this  I  would  not  apply  in  such  strong  terms  to  the 
study  of  the  science  of  the  law,  provided  that  the  introduc- 
tion to  it  has  been,  by  taking  advantage  of  the  hill,  as  those 
who  make  roads  ;  and,  by  ascending  obliquely^  attain  emi- 
nence. In  proportion  as  a  proficiency  is  made  in  any  sci- 
ence, or  art,  a  taste  is  acquired  for  it ;  and  it  becomes  not 
only  easy,  but  pleasant ;  nor  if  skilfully  managed,  as  has 
been  hinted,  are  the  first  steps  to  the  attainment  of  this 
science,  so  painful  and  laborious  as  they  were  wont  to  be, 
before  this  fine  outline  has  been  given  in  these  commentaries 
of  Blackstone  ;  and  when  the  student  was  under  the  neces- 
sity of  encountering,  in  the  first  instance,  the  black  letter 
of  abridgments  ;  or  in  the  Norman  French,  the  precedents 
of  pleadings,  and  reports  of  the  law.  Even  the  black  let- 
ter of  Coke  upon  Littleton,  at  a  more  modern  period,  was 
discouraging  to  the  tyro ;  and  it  was  no  wonder  that  marv 
were  drawn  off  from  the  task,  and  failed  in  attaining  tlis 
profession. 

I  am  aware  that  there  is  danger  of  too  much  indulgence 
in  polite  literature,  so  as  to  draw  away  from  the  necessary 
application  to  what  is  technical  in  the  law ;  and  yet  with- 
out which  the  conduct  of  a  sait^  and  an  accurate  knowledge 
of  practice,  as  well  as  principles  of  common  law,  or  statute, 
is  not  attainable.  But  the  medium  of  an  application  to  one 
and  the-  other  of  these,  must  be  aimed  at.  I  have  known  a 
person  who  was  so  strongly  attached  to  general  learning  and 
the  belles  lettres,  that  it  become  almost  impossible  to  attach 
himself  to  the  profound  research  of  legal  questions,  and  the 
deep  study  of  science,  so  that  he  was  under  the  necessity  of 
retiring,  for  a  time,  from  all  opportunity  of  libraries,  in  order 
to  become  a  lawyer  ;  or  to  be  in  the  way  of  becoming  one. 

When  a  competent  legal  knowledge  shall  have  been  ob- 
tained, so  as  to  be  admitted  to  the  bar,  it  is  a  vulgar  error 
to  suppose  that  any  acquirement,  or  even  natural  advantage, 
is  substantially  to  be  depended  upon,  but  the  being  master  of 
the  scieiu;e.  IVIere  genius  goes  but  a  little  way  in  making  a 
lawyer;  there  must  be  aj^lodding;  and  hence  it  is  that  the 
plo'.ldiPi,'  st'.'.dt-nt  will  oftentimes  reach  the   goal,  when  more 

C 


xviii  Introductiok.  I 

lively  talents  will  not.  It  must  be  kept  in  mind,  that  general 
and  liberal  learning,  is  but  an  introduction,  and  a  great  em- 
bellishment and  help  ;  but  Avithout  something  like  correct 
information,  and  knowledge  of  the  science,  the  professional 
man  may  be  said  to  be  infelix  summa  operis ;  and  a  court 
would  rather  hear  him  who  has  some  depth  of  judgment, 
but  without  volubility,  or  grace  of  diction,  than  all,  that  voci- 
feration, with  the  best  manner  can  do,  where  there  is  but 
the  vox  et  prseterea  nihil;  and  to  a  jury  even,  closeness 
and  clearness,  in  the  illustration  of  matter  of  fact,  or  law 
is  all  prevailing.  With  the  client  himself,  it  is  felt  as  hitting 
the  nail  upon  the  head  ,*  though,  with  a  bystander,  who  is  not 
bound  by  oath  to  give  attention,  or  led  by  interest  to  con- 
sider the  effect  upon  the  understanding,  declamation  may  be 
more  pleasing ;  and  flourishes,  and  gesticulations,  and  the 
sounding  brass,  and  tinkling  cymbal  of  the  voice.  Of  good 
speaking,  the  great  secret  is  good  sense,  and  a  knowledge  of 
the  subject.     Of  good  writing,  it  is  said  by  the  poet, 

Scribendi  recte  sapere  est,  et  pricipium,  et  fons. 

So  also  it  maybe  said  of  speaking  well;  and  no  man  will 
speak  ill,  unless  through  some  want  of  habit,  or  impedi- 
ment of  tongue,  provided  that  he  understands  his  subject. 

Cui  lecta  potenter  erit  res, 

Nee  facundia  de  eret  hunc  nee  lucidus  ordo. 

Thought  is  the  body,  and  good  expression  the  dress  of 
thought.  What  is  dress  or  ornament  without  a  body  I 
Hence  the  maxim,  think  trvice  before  you  speok  once. 

The  not  thinking,  sufficiently,  induces  surplusage  and  re- 
petition; for  a  consciousness  that  a  thing  has  not  been  well 
said,  leads  to  an  attempt  to  say  it  better.  Thinking  before 
hand  supersedes  the  necessity  of  this ;  and  it  is  delightful 
to  hear  one  speak  who  comes  well  prepared  ;  whose  words 
are,  in  the  language  of  the  scripture,  "  As  goads,  and  as 
nails  fastened  by  the  masters  of  assemblies."  Every  word 
tells,  so  to  speak;  and  to  use  another  phrase  of  the  same 
scripture,  there  is  no  "  vain  babbling."  There  is  nothing 
that  has  contributed  so  much  to  depreciate  the  character  of  ^ 
the  advocate   at  the  bar,  as  loose,  tedious  harangues,  which         ^ 


Introduction.  xix 

proceed   from  a  defect  of  classical  education ;  or  a  want  of 
due  meditation  on  the  matter  to  be  argued. 

It  is  a  vulga?  error,  that  forwardness  and  impudence  is  a 
qualification  at  the  bar ;  on  the  contrary,  modesty  is  cha- 
racteristic of  the  i77^enuous  fnind,  and  bespeaks  talents  ;  -svhich 
is  more  likely  to  gain  the  attention  of  the  court,  as  Avtll  as 
the  public  approbation,  than  assurance  xv'ithout  good  s-nse^ 
and  Ic^al kno^vledge  to  support  it.  And,  though  noise  and  de- 
clamation, like  a  song,  may  please  the  uninformed  suitors ; 
yet  when  a  manhimself  comes  to  be  interested,  and  enquires 
for  an  able  lawyer  to  defend  his  cause,  he  will  look  out  for 
such  as  have  a  more  solid  eloquence. 

Whether  owing  to  the  abuse  of  speaking  at  the  bar,  or 
to  other  causes,  certain  it  is,  that  there  would  seem  to  be 
some  prejudgment  against  the  profession  of  the  law  in  Penn- 
sylvania. That  there  are  other  causes,  I  must  admit.  The 
denomination  of  people  called  Quakers,  amongst  themselves 
called  Friends^  do  not  admit  a  practitioner  of  the  law  to  be 
in  full  communion.  It  is  a  regulation  of  discipline^  not  to 
go  to  law,  but  to  decide  all  matters  of  meum  and  tuum  by 
reference  to  members  of  the  religious  body  :  this  is  deduced 
somewhat  from  the  example  of  the  primitive  christians,  as 
appears  from  the  censure  of  a  contrary  conduct  in  some  in- 
stances, by  the  apostle  :  "  Brother  goeth  to  law  with  bro- 
ther, and  that  before  unbelievers."*  With  that  body  of 
people  also  who  entertain  the  puritan  doctrines,  and  who 
are  the  most  numerous,  presbyterians,  &c.  the  name  of  law- 
yer is  obnoxious  ;  and,  somewhat,  from  a  text  of  scripture  fa- 
miliar to  them  :  "  Woe  unto  you  also,  ye  lawyers  ;  for  ye  load 
men  with  burthens  grievous  to  be  borne  ;  and  ye  yourselves 
touch  not  the  burthen  with  one  of  your  fingers. "|  But  it  is 
not  considered  that  those  of  whom  these  words  were  spoken 
were  Jewish  lawyers  ;  and,  of  the  Jews,  it  has  been  pro- 
verbial, at  all  times,  that  they  are  griping  and  usurious. 
And  even  of  the  Jewish  doctors,  before  this  time,  and  rab- 
bies,  the  prophets  had  denounced  the  cupidity  and  the  ex- 
action :    "  The    heads   thereof  (speaking    of    the    house    of 

*  I  Cor.  vi.  6.         t  Luke  xi.  46. 


XX  Introduction. 

Jacob)  judge  for  reward,  and  the  priests  thereof  teach  for 
hire,  and  the  prophets  thereof  divine  for  money."*  But  I 
will  not  conceal  that  even  the  lawyers  of  our  own  times,  in 
this  christian  state,  are  not  altogether  free  from  the  reproach 
of  taking  higher  fees  than  may  comport  with  humanity,  in 
many  instances.  The  Stat.  32  Hen.  viii.  c.  9,  respecting 
champerty  and  maintenance  has  not  been  introduced ;  and 
the  equality  of  condition,  has  doubtless  been  a  reason  of  it ; 
and,  oftentimes,  parties  not  monied,  preferring  to  stipulate 
for  something  out  of  what  was  recoverable,  or,  the  giving  of 
something  unconditional,  has  introduced  the  practice,  with 
the  profession,  of  taking  what  are  called  contingent  fees.  This, 
nevertheless,  cannot  but  be  unavoidably  accompanied  with 
an  over  tenacity  in  pursuing  a  claim  by  litigation  in  court, 
after  it  shall  have  appeared  in  the  view  of  indifferent  per- 
sons, to  be  without  foundation.  Appeals,  Writs  of  error, 
and  motions  for  new  trials,  are  the  fruits  of  this.  In  Eng- 
land it  would  not  seem  allowable  in  counsel  to  bargain  for  a 
proportion  of  the  damages  ;f  "  and  even  at  common  law 
there  was  a  maintenance.":}:  But,  in  the  case  of  an  attorney, 
I  have  not  known  the  common  law,  in  this  particular,  intro- 
duced here.  For,  perhaps,  owing  to  the  scarcity  of  a  cir- 
culating medium,  at  an  early  period,  it  was  tolerated,  and 
has  become  common.  But  I  take  it,  the  bulk  of  the  profes- 
sion, at  least  the  more  eminent,  would  not  be  unwilling  to 
have  it  understood  to  be  unlawful;  for  such  bargains  are 
often  pressed  upon  them,  and  seldom  where  the  client  thinks 
his  cause  good.  It  seldom  happens  but  that  in  case  of  a 
proposition  of  this  nature,  the  suitor  will  keep  back  some- 
thing very  material  in  the  statement  that  he  gives,  and  on 
which  the  cause  may  turn. 

Nevertheless,  notwithstanding,  owing  to  these  or  other 
causes,  there  may  be  some  drawback  on  the  popularity  of 
the  profession ;  yet,  in  the  nature    of  things,  it  cannot  but 

*  Mic.  iii.  11. 

t  The  law  severely  contrabands, 

Our  taking  business  off  men's  hands Hud. 

^  l.?th  Vin.  151. 


Introduction.  xxl 

^  respectable.  It  is  a  proof  of  this,  that  it  is  perhaps  too  much 
coveted;  persons  applying  themselves  to  the  profession  who 
cannot  succeed  in  it :  invita  Minerva,  and  against  nature. 
This  results,  in  most  instances,  from  parents  designing  their 
sons  for  a  literary  profession,  whose  particular  genius  they 
have  not  been  able  to  ascertain.  And  it  cannot  be,  in  all 
cases,  from  a  prospect  of  attaining  great  wealth,  that  the  pro- 
fession of  the  law  is  obtruded  upon  young  persons.  For 
though,  with  reasonable  industry,  a  competent  independence 
may  be  gained  by  the  practice  of  the  law,  yet  it  seldom  leads 
to  great  emolument.  But  the  idea  of  knowledge  gives 
power ;  and  there  is  naturally  associated  with  the  idea  of 
one  skilled  in  thejlaws,  that  of  power,  in  a  government  of  laws. 
It  cannot  but  occur  to  an  individual,  that  he  may  have  occa- 
sion for  the  assistance  of  an  advocate,  in  defending  his 
estate,  or  his  reputation.  For  no  man  can  be  placed  beyond 
the  reach  of  being  assailed,  in  both  these  respects.  But,  in- 
dependent of  any  use  to  ourselves,  the  idea  of  superior  in- 
formation, and  intellectual  endowments,  has  a  charm  to  the 
mind  of  man,  from  the  love  of  excellence  as  we  admire 
beauty  in  other  matters.  In  proportion  to  the  superiority  of 
mind  above  body,  the  powers  of  intellect  are  valued.  This 
is  evident  from  the  less  estimation  of  a  fine  art  in  propor- 
tion as  it  is  coupled  with  manual  labour.  Who  would  not 
rather  be  a  Demosthenes  than  a  Phidias  ?  A  degree  of  libe- 
ral knowledge  is  indispensable  to  the  profession  of  the  law, 
and  the  practitioner  cannot  but  be  supposed  to  possess  more, 
in  general,  than  the  husbaiidman^  the  mechanic^  or  the  mer- 
chant;  though  I  must  acknowledge  that  there  are  exceptions 
at  the  bar,  as  well  as  on  the  bench ;  mere  clerks  and  note- 
takers,  or  whose  minds  are  confined,  in  a  great  degree,  to 
the  narrow  limits  of  technical  learning,  and,  in  their  conver- 
sation, can  talk  of  nothing  but  of  John  O'Nokes,  or  William 
Stiles,  or  John  Doe,  and  Richard  Roe. 

I  can  have  no  difficulty  in  saying  which  is  the  greatest 
effort  of  the  mind ;  the  conducting  an  army  or  the  manage- 
ment of  a  cause  in  court.    Sallust,*  who  was  himself  a  mili,- 

*  Inprimis  arduura  vidctur  res  gesta  scribere. 


xxii  Introduction. 

tary  man,  has  made  it  a  question,  which  of  these  requires 
the  greatest  talent,  the  task  of  the  general,  or  that  of  the  his- 
torian. Although  I  will  allow  that  this  may  be  made  a 
question;  yet  I  consider  the  framing  a  narrative,  with  all 
the  philosophy  that  may  be  interspersed,  which  is  the  task 
of  the  historian,  as  far  behind  that  of  the  orator.  And  I 
can  have  no  conception  of  any  thing  approaching  nearer  the 
power  of  an  angel,  than  the  management  of  an  argument 
with  the  human  mind;  requiring  an  intuitive  knowledge  of 
the  heart  to  distinguish  what  can  persuade  :  those  resources 
of  argument,  which  can  lead  the  understanding;  that  pre- 
sence of  mind  which  gives  a  command  of  diction,  and  which, 
from  sober  reasoning,  can  ascend  to  the  regions  of  imagi- 
nation, and  turn  and  wind  the  fiery  Pegasus  of  fancy,  de- 
scending or  re-mounting  as  the  subject  may  require  ;  the 
orator  in  his  lofty  flights,  like  the  eagle, 

"  Sailing  with  supreme  dominion 
Through  the  azure  deeps  of  air."* 

Great  generalship  requires  great  judgment ;  but  not  more 
than  a  game  of  chess.  An  equal  judgment,  and  presence 
of  mind  is  required  in  the  orator ;  the  surprise  of  sudden 
emergencies  calls  for  the  talents  of  a  commander;  but  not 
less  are  displayed,  though  apparently  of  less  magnitude, 
where,  in  the  course  of  a  trial,  the  evidence  takes  a  sudden 
turn,  and  the  front  of  your  defence  must  be  changed.  It  is 
the  image  of  a  field  of  battle.  But  to  presence  of  mind 
and  judgment,  the  faculty  of  eloquence  must  be  superadded  ; 
that  wonderful  arrangement  of  ideas  which  must  appear  al- 
most miraculous.  An  able  lawyer  could  not  but  make  a 
great  general;  but  it  does  not  follow  that  an  able  general 
would  make  a  great  lawyer;  for  the  province  is  more  ex- 
tensive, and  the  task  greater.  A  campaign  or  two  will 
form  a  general;  but  the  able  lawyer  is  the  work  of  years; 
viginti  annorum  lucubrationes.  It  behoves  to  begin  early 
and  to  discipline  the  mind  much.  The  dictum  may  be  ap- 
plied in  this   case ;  "  he  who   is  industrious  to  reach  the 

*  Grav. 


Introduction.  xxiii 

wished  for  goal  has  done  and  endured  much  in  his  eai'ly 
years."* 

It  is  difficult  to  make  up  for  the  -want  of  application  in 
early  years  ;  under  which  want  of  application,  the  American 
youth  chiefly  labour.  Owing  to  the  indulgence  of  parents, 
and  family  education,  there  is  a  want  of  tone  in  the  mental 
system,  which  it  is  not  easy  to  restore  in  the  academies,  or 
produce.  And  even  here,  there  is  oftentimes  a  Avant  of  a 
discipline  sufficiently  rigid :  on  the  contrary  not  only  too 
loose  a  rein,  but  a  superficial  course  of  study.  And 
after  leaving  the  academies,  sufficient  preparation  is  not  en- 
joined, or  allowed  for  the  gaining  a  knowledge  of  a  profes- 
sion; and  this  from  an  impatience  to  get  forward,  and  to 
fly  unfledged  from  the  nest.  Boys  are  7nen  too  soon^  and 
therefore,  always  boys.  We  see  the  skilful  husbandman  re- 
pressing the  luxuriance  of  his  grass,  by  cutting ;  or  lopping-  his 
tree,  to  give  it  base,  and  make  it  spread.  The  American  genius 
is  vigorous  abundantly  ;  but  there  is  an  impatience  to  appear, 
in  the  capacity  of  men,  and  to  undertake  a  profession  ;  which 
cannot  but  be  in  the  way  o(  attaining-  a  great  eminence.  A 
lofty  structure  requires  a  deep  and  broad  foundation.  "  Nor 
would  Italy,  says  the  poet,  be  raised  higher  by  valour  and 
feats  of  arms,  than  by  its  language,  did  not  the  fatigue  and 
tediousness  of  using  the  file  disgust  every  one."! 

The  not  having  the  means  of  support  in  going  through  a 
regular  course  of  education,  and  waiting  a  reasonable  time 
for  an  admittance  to  the  bar,  is  a  reason  v/ith  many  for  this 
haste  ;  but  impatience  is  the  cause  with  more.  With  those 
that  v/ant  means,  there  is  usually,  industry  and  perseverance, 
to  make  up  for  this ;  but  it  requires  industry  and  perseve- 
rance. A  medium  between  easy  and  narrow  cicumstances 
is  desirable,  but  not  the  possession  or  prospect  of  an  estate, 

*  Qui  Studct  optatam  cursu  conlingcre  mctam 
Multa  tulit,  fecilque  puer. 
t  Nee  virtute  foret  clarisve  potentius  armis, 
Quam  lingua  Latium  ;  si  non  ofTendcrct  iinum 

Qucmque  poetarum  llrAse  labor  c'c  mora * 

Horace. 


xxlv  Introduction. 

independent  of  the  practice.  For  when  there  is  such  a  pros- 
pect, or  possession,  the  necessary  exertions  cannot  be  ex- 
cited that  will  make  a  lawyer.  It  may  be  said  to  be  as  easy, 
in  the  language  of  the  scripture,  with  a  view  to  another  ob- 
ject, for  a  camel,  or  cable  as  some  suppose  it  ought  to  be  trans- 
lated, to  go  through  the  eye  of  a  needle,  as  for  the  son  of  a 
rich  man  to  become  a  lawyer ;  or  in  fact  almost  any  thing 
else  that  requires  labour.  Such  must  remain  amongst  those, 
the  fruges  consumere  nati.  The  Novi  homines,  the  res  au- 
gustae  domi  men  can  alone  surmount  the  drudgery  of  acqui- 
ring a  knowledge  of  the  law ;  or  sustain  the  practice. 
Were  I  to  depict  the  making  a  man  a  lawyer,  I  would 
change  a  little  the  image  of  that  moral  painting  in  the  tabla- 
ture  of  Cebes,  where  the  virtuous  man  is  represented  as 
climbing  a  rock,  two  female  figures  (sisters)  self-government 
and  perseverance^  standing  above,  and  extending  their  hands 
to  encourage  him.  I  would  represent  one  clambering  up  a 
precipice,  and  poverty,  like  an  old  and  ugly  witch,  with  a 
flail,  urging  from  below. 

— — — "  Duris  in  rebus  urgens  egestas." 

It  is  one  advantage  of  the  law  of  primogeniture  in  Eng- 
land, though  working  seeming  hardship  to  younger  sons ; 
that  they  are  put  upon  their  own  exertions  j  and  with  but 
little  means  are  under  the  necessity  of  tasking  all  their  facul- 
ties for  their  subsistence  ;  and  for  enabling  them  to  rise  in  the 
world.  The  church  affords  a  living  for  some  ;  and  there  is 
a  prospect  of  becoming  dignitaries.  But  the  army,  the  navy, 
or  the  law,  affords  more  generally  a  prospect  of  advancement. 
These  require  great  exertions  in  order  to  be  competent  to 
the  task;  and  necessity  prompts,  and  calls  forth  all  the  pow- 
ers of  mind  and  body.  Distinction  is  the  consequence; 
and  hence  it  is,  that  the  history  of  the  peerage  of  Great  Brit- 
tain,  contains  an  illustrious  catalogue  of  those  who  have  so 
risen.  Elder  brothers,  who  enjoy  the  estates  at  home,  are 
little  heard  of  but  for  their  hospitality;  their  fox  hunting; 
or  as  giving,  what  may  be  called  a  dumb  vote,  in  parliament. 
Wealth  is  the  bane  of  genius,  whSX^  povertij  is  the  preceptresji. 
Ingenii  largitor  venter«.     Wealth  with  its  concomitant  luxu- 


Introduction.  3ixv 

ry,  is  the  destroyer  of  virtue ;  whether  with  an  individual 
or  a  nation. 

The  sentence  that  was  pronounced  upon  Adam  was  not 
more  a  punishment  than  a  preservative  ;  a  suffering  than  a 
medicine ;  "  by  the  sweat  of  thy  brow,"  &c.  Labour  and  in- 
dustry are  the  means  necessary  to  res. rain,  and  keep  in  sub- 
jection the  passions.  Adversity  shews  the  necessity  of  the 
assistance  of  others,  and  must  produce  philanthropy  in  an 
ingenuous  mind  ;  and  no  greai:er  secret  can  exist  in  getting 
forward  in  the  practice  of  the  law  :  civility  and  humility  are 
popular  qualities.  It  is  the  semblance  o.  these  that  men  af- 
fect when  they  court  popularity  for  the  sake  of  office,  or  ad- 
vancement in  the  public  councils.  But  the  esse  quam  videri, 
is  more  easy,  and  at  the  same  time,  more  natural. 

An  honest  and  faithful  defence  of  a  client  in  a  good  cause, 
is  perfectly  consistent  with  that  indignation  which  may  be 
expressed  against  the  claim  of  an  adversary,  and  may  call 
for  it,  with  respect  at  the  same  time  for  his  general  charac- 
ter. What  hinders  the  distinguishing  the  claim  from  the 
man;  save  so  far  as  it  is  an  evidence  of  his  injustice  in  the 
particular  case.  But  I  speak  of  general  benevolence  to  so- 
ciety, and  respect  shewn  to  high  and  low.  This  is  bet- 
ter than  clinging  to  a  particular  denomination  of  the  re- 
ligious, from  worldly  motives ;  or  affecting  fanaticism ; 
or  espousing  a  party  in  politics.  For  this  must  detract 
from  a  consciousness  of  sincerity  in  one's  self;  and  lessen  the 
respect  of  the  discerning,  who  may  question  the  motive. 

But  what  is  the  object  of  practice,  but  the  acquisition  of 
some  estate ;  which,  if  wealth  is  an  evil,  ought  to  be  avoided* 
The  possession  of  wealth  is  neither  good  nor  evil  in  itself; 
but  immoderate  wealth  is  the  cause  of  self-indulgence^  and 
the  occasion  of  evil.  This  consideration  ought  to  be  a  check 
onthe  cupidity  of  riches.  I  have  seldom  known  a  lawyer, 
or  any  man  else  who  has  left  a  great  estate,  that  had  a  son, 
of  much  reputation,  to  succeed  him.  The  pleasure  of  a  gain- 
ful accumulation,  is  all  that  he  has  ever  got  for  himself; 
and  pride  and  sloth  the  sum  of  what  he  has  acquired  for 
his  descendants.     The  want  of  motive  to  action  is  but  ano- 

D 


xxvi  Introduction. 

ther  name  for  the  legacy  that  is  left ;  and  this  want  of  mo- 
tive entails  listlessness,  and  lounging,  and  recourse  to  clubs 
followed  by  intemperance.  Such  are  to  be  pitied  when  un- 
der the  necessity  of  amusing  themselves  by  invitations  to 
convivial  entertainments  ;  and  compliments  for  the  compa- 
ny of  those  whom  they  respect  or  not  as  it  happens.  The 
gout  and  the  dropsy  is  in  their  viands,  and  their  cups. 
They  must  be  indebted  to  the  theatre  in  the  winter,  or  to 
tvatermg  places  in  the  summer  ;  where,  if  infirmities  do  not 
lead  them,  the  having  nothing  to  do,  will. 

It  may  now  be  proper  to  suggest  what  it  is  that  had  put 
me  upon  writing  this  introduction,  with  a  view  to  an  edition 
of  Blackstone's  Commentaries.  For  though,  considering  my 
station,  it  may  not  appear  presumptuous,  yet  it  might  be  deem- 
ed unnecessary".  Tucker  has  given  an  edition,  in  which  he 
has  taken  a  view  of  the  outline  of  the  constitution  and  go- 
vernment of  the  United  States  which  has  taken  place  of  that 
of  Eijgland  ;  and  at  the  same  time  of  the  constitution  of  Vir- 
ginia, and  the  laws  under  it.  Might  not  the  same  thing  be  ne- 
cessary as  to  the  constitution  and  laws  of  each  state  in  the 
tinion;  shewing  what  principles  of  the  common  law  hav^e  been 
introduced  as  applicable  to  our  situation ;  what  statutes,  or 
construction  of  statutes  j  or,  in  what  particulars,  the  common 
law  has  been  changed  by  our  acts  of  Assembly ;  or  by  the  de- 
cisions of  our  courts  ?  It  must  be  of  an  advantage  to  the 
student  whose  reference  to  these,  under  the  respective  heads 
of  the  law,  may  be  made,  at  the  same  time,  with  the  reading 
these  commentaries'  It  will  save  a  great  deal  of  time  to  have 
presented  to  his  view  these  relations,  oppositions,  variations 
and  congruencies,  under  the  particular  head  that  is  treated  of 
in  this  outline  of  the  law  of  England.  Not  that  I  could  expect 
to  have  it  in  my  power  to  go  through  with  it,  owing  to  the 
little  time  I  have  to  spare  from  official  duties ;  and  from  the 
date  of  life  drawing  to  a  close  at  no  distant  day.  Neverthe- 
less it  may  lead  the  way  for  some  other  person  of  more  ta~ 
lents  ;i^d  leisure,  and,  beginning  earlier  in  life,  to  complete 
the  object.  For  it  is  clear  to  me  that  something  of  this  kind 
ought  to  be  done,  as  well  for  the  use  of  the  practising  law- 
\'er  as  for  the  service  of  the  student. 


LAW  MISCELLANIES 


SOME  VIEW  OF  THE    ENDEAVOURS   TO  iMPROVr-r 
THE  LAW  BY  THE  LEGISLATURE. 

IN  the  year  1787',  going  into  the  office  of  Wilson^ 
(James)  of  Pennsylvania ;  great  as  a  lawyer^  but  greater  as 
an  orator ;  I  observed  a  folio  bound  up  with  blank  leaves, 
intervening ;  and  in  v.hich  he  had  begun  to  add  notes,  un- 
der the  respective  heads  of  law  ;  perhaps  only  as  Christian, 
has  since  done  ;  or  perhaps  with  a  reference  at  the  same 
time  to  the  principles  of  our  common  law^  under  the  re- 
spective heads,  as  it  stood  upon  our  introduction  of  the  com- 
mon law ;  cr,  as  it  has  been  varied  since,  bj^  acts  of  assem- 
bly or  otherwise,  in  tlie  manner  of  Tucker,  as  to  the  laws  of 
Virginia  ;  for  as  to  the  constitution  of  the  United  States  it 
had  not  been  then  formed  ;  for  in  fact  it  was  a  delegation 
to  the  convention  that  formed  this  constitution ;  and  after- 
wards, to  the  state  convention  which  adopted  it,  and  the  sub- 
sequent judiciary  appointment  to  the  bench  of  the  supreme 
court  of  the  United  States,  that  interfered  with  the  going 
©n  with  his  design.  It  was  a  loss  ;  because  the  mind  of 
that  man  was  great  and  comprehensive.  He  has  left  three 
volumes  of  his  writings,  chiefly  lectures  delivered  as  pro- 
fessor of  law  in  the  university  of  Pennsylvania,  at  the  same 
time  that  he  filled  his  judicial  station.  From  the  continu- 
ance of  these  lectures,  his  attention  was  drawn,  says  the 
editor  of  a  posthumous  publication  of  them  (his  son  Bird 
Wilson)  "  by  an  object  of  more  importance  in  which  he  was 
engaged."  In  March  1791,  the  house  of  representatives  in 
the  general  assembly  of  Pennsylvania  appointed  him  "•  to  re- 
vise and  digest  the  laws  of  the  commonwealth ;  and  to  as- 
certain and  determine  how  far  anu  British  statutes  extended 


28  Law  Miscellanies. 

to  ity  and  to  prepare  bills  containing  such  alterations,  addi- 
tions and  improvements,  as  the  code,  laws,  and  the  princi- 
ples and  form  of  the  constitution  then  lately  adopted,  might 
require."  In  a  letter  on  the  subject  to  the  speaker  of  the 
house  of  representatives  of  the  24th  Aug.  1791,  he  reports 
some  outlines  of  his  system,  and  the  progress  he  had  made. 
But,  as  stated  by  his  editor,  owing  to  the  want  of  a  provi- 
sion by  the  legislature  sufficiently  ample  for  the  pecuniary 
expenses  necessary  to  the  purchase  of  books,  papers,  &c. 
and  the  assistants,  the  design  of  framing  a  digest  under  the 
authority  of  the  legislature  was  relinquished. 

It  was  considered  a  great  loss  by  intelligent  men  that 
the  design  should  be  abandoned ;  and,  it  continued  to  be 
thought  of  as  what  ought  to  be  accomplished. 

By  an  act  of  the  17th  April,  1807,  "  the  judges  of  the  su- 
preme court  were  required  to  examine  and  report  to  the 
next  legislature,  which  of  the  English  statutes  are  in  force  in 
this  commonwealth,  and  which  of  those  statutes  in  their 
opinion  ought  to  be  incorporated  into  the  statute  laws  of  this 
commonwealth."  December  4th,  1808,  that  report  was 
made.  It  cannot  be  understood  that  this  report  had  the 
force  of  a  decision  by  the  court ;  much  less  that  it  could  be 
considered,  as  to  any  statute  so  reported,  to  be  conclusive  ; 
for  it  must  remain  the  right  of  any  person  to  contest  it,  in 
a  judicial  investigation,  as  to  the  being  in  force  or  otherwise ; 
nor  could  even  an  act  of  the  legislature  make  it  conclusive 
a  parte  ante,  as  to  property  holden  under  the  existence  of  any 
statute  that  had  been  introduced.  For,  in  that  case,  it 
would  have  a  retrospective  operation,  which,  by  the  consti- 
tution, cannot  be.  The  report  of  the  judges,  and  any  sanc- 
tion the  legislature  could  give  it,  must  be  still  considered 
subject  to  the  right  which  any  one  must  have,  to  show,  by 
themselves  or  counsel,  in  a  judicial  trial  before  a  court  and 
jury,  that  such  statute  had  been  introduced,  though  the  le- 
gislature might  from  that  time  provide  that  it  should  not  be 
in  force.  Nevertheless  it  was  a  wise  and  necessary  policy 
to  have  such  a  step  taken  towards  ascertaining  what  were 
in  force.     It  was  an  advance  to  the  obtaining  some  inior- 


Law  Miscellanies.  29 

mation  on  the  subject.  It  had  been  indeed  questioned  whe- 
ther an  obligation  could  be  imposed  upon  the  judges  to  make 
6uch  a  report,  it  being  extra-judicial  wholly  ;  but  approv- 
ing the  object,  the  judges  cheerfully  undertook  it;  but  con- 
sidering such  report  as  nothing  more  in  law,  than  if  made 
by  any  other  four  of  the  community,  whatever  weight  it 
might  have  as  being  made  by  persons  who  were  supposed 
competent.  It  was  regretted  by  them  only,  that,  consistent 
with  their  official  duties,  there  was  not  sufficient  leisure  to 
make  such  enquiries  and  researches  as  were  necessary  to 
satisfy  themselves.  For  as  to  what  statutes  had  been  intro- 
duced, it  could  be  collected  only  from  the  memory  of  the 
practising  lawyer,  or  notes  of  cases,  in  which  any  particular 
statute  had  been  considered  as  extending.  Notes  were  few, 
and  printed  reports  none,  from  the  settlement  of  the  colony 
until  after  the  revolution,  and  the  state  became  independent. 
Those  of  Dallas  were  the  first ;  and  these  from  notes  of  but 
some  cases  furnished  chiefly  by  the  judges,  or  rather  an  in- 
dividual judge,  the  Chief  Justice.  But  these  reports,  even 
though  imperiect  as  respects  the  whole  state,  have  been  of 
great  utility ;  and  much  credit  is  due  to  the  reporter  for  his 
undertaking  as  well  as  for  the  execution.  It  was  chiefly  from 
the  memory  of  the  profession  ;  or  the  recollection  of  admis- 
sions or  decisions  in  the  course  of  their  practice  at  the  bar, 
or  since  they  came  upon  the  bench,  that  the  judges  could 
supply  the  defect  of  written  evidence,  as  to  what  statutes 
had  been  introduced,  and  were  considered  as  in  force. 
There  was  not  leisure  or  opportunity  to  consult  the  profes- 
sion in  these  particulars,  even  those  of  them  that  were  with- 
in a  narrow  compass,  and  had  resided  in  the  city;  and,  as- 
to  those  in  the  country,  it  was  out  of  the  question.  There 
was  little  or  no  opportunity  of  consulting  these  from  their 
scattered  residence.  And  yet  the  enquiry  v/as,  in  part,  a 
matter  of  tradition,  and  depended  upon  the  usage.  Un- 
written common  law  evidence  was,  in  many  cases,  all  that 
could  be  got.  No  wonder  then,  that  under  this  haste,  the 
profession  should  be  unwilling  that  this  report  of  the  judges 
should  be  considered  ^^Jinal  or  conclusive.    It  could  not  be 


fO  Law  Miscellanies. 

so  considered  even  with  every  advantage  of  enquiry;  for 
that  could  only  be  where  the  point  came  in  question  in  the 
course  of  a  trial,  and  on  a  judicial  investigation  j  in  which 
case  evidence  could  be  called  for,  oral  or  written,  to  assist 
the  information  which  the  judges  might  have  of  their  own 
Icnowledge.  With  these  helps,  and  the  argument  of  learned 
counsel,  able  and  better  informed  than  themselves,  as  is 
often  or  most  usually  the  case,  they  might  be  enabled  the 
better  to  form  a  judgment. 

The  task  was  more  extensive  which  was  delegated  to 
Wilson  (judge.)  It  was  not  only  to  say  what  statutes  had 
been  introduced ;  and  in  fact  to  say  what  ought  to  be  adopt- 
ed, as  applicable  to  the  principles  and  forms  of  our  constitu* 
tion ;  but  to  prepare  bills  containing  such  alterations,  addi- 
tions and  improvements  as  the  code  of  laws  and  this  consti- 
tution, and  these  forms  might  require.  It  was  to  do  more ; 
to  revise  and  digest  the  laws  of  the  commonwealth.  By  an 
act  of  March  10th,  1812,  legislative  encouragement  was  gi- 
ven for  the  printing  the  English  statutes  which  are  in  force 
in  Pennsylvania  as  reported  by  the  judges  of  the  supreme 
court,  together  with  their  report  on  that  subject.  This  was 
another  step  towards  accomplishing  what  had  been  delegat- 
ed to  judge  Wilson.  But  it  was  but  a  very  small  step.  It 
is  nothing  more  than  a  printer  could  have  done,  and  was 
about  doing ;  and  well  deserving  this  encouragement.  But 
it  would  be  a  great  object,  and  require  an  able  lawyer,  or  law- 
yers perhaps  ;  for  in  a  multitude  of  counsellors  there  is 
safety ;  it  would  require  lawyers,  I  say,  to  go  further,  and 
to  point  out  what  construction  has  been  put  upon  these  sta- 
tutes  by  the  English  courts  ;  and  zohat  construction  has  been 
adopted  here  ;  what  practice  deduced  under  these^  in  England, 
or  here.  This  would  be  a  most  useful  work.  For  even  to 
the  bulk  of  practising  lawyers,  or  judges,  it  is  not  familiar. 
The  language  of  these  statutes  also  is  in  some  degree  obso- 
lete, and  by  the  people  unintelligible.  A  translation,  as  it 
might  be  called,  into  modem  and  popular  expression,  would 
be  necessary  :  for  it  can  be  but  of  little  use  to  the  legislature, 
iu  examining  these  statutes,  to  have  them  presented  to  them 


Law  Miscellanies.  31 

a»  they  are,  without  explanation,  or  comment.  It  would  be 
a  task  of  ability  to  do  this ;  and  would  require  high  talents 
to  draw  bills  embracing  the  same  thing  in  a  modem  style  of 
enactment.  But  to  frame  such  bills  adapted  to  our  constitu- 
tion, and  the  forms  of  it,  would  be  a  matter  of  still  greater 
difficulty.  But  the  task  delegated  to  judge  Wilson  embrac- 
ed more  ;  it  was,  to  revise  and  digest  the  laws  of  the  common' 
rvealth  ;  and  this  was  perhaps  a  still  more  important  object ; 
and  greatly  conducing  to  the  convenience  of  all  the  officers  of 
the  commonwealth  ;  to  the  legislature  j  and  must  be  greatly 
satisfactory  to  the  people  themselves.  It  would  be  desirable 
to  have  a  single  law  on  every  particular  subject,  embracing 
the  provisions  of  the  several  laws  on  that  head,  and  contain- 
-cd  in  other  acts  and  supplements.  This  would  reduce  the 
acts  of  assembly  to  a  much  lesser  compass ;  and  if  done  by 
a  person  or  persons  equal  to  the  trust,  might  be  drawn  up 
with  such  simplicity  and  perspicuity  of  expression  as  would 
preclude  much  litigation.  It  is  the  result  of  much  habit  of 
composition  to  make  use  of  words  unequivocal  and  unambigu- 
ous^ as  well  as  to  arrange  properly.  It  requires  clear  thought, 
as  well  as  a  perspicuous  diction,  to  frame  a  law.  It  is  the 
arrangement  alone,  in  our  language,  that  secures  perspicuity. 
In  the  ancient  languages,  or  what  are  called  the  learned, 
there  is  concord  or  agreement;  the  relations  of  gender,  num- 
ber, case,  person,  &c.  enabling  to  refer  one  word  to  another, 
and  to  couple,  so  as  to  assist  the  construction,  or  to  ascer- 
tain the  meaning.  But  in  our  language,  unless  with  the 
most  careful  attention  to  the  arrangement  of  words  in  a  sen- 
tence, there  can  be  but  little  more  than  a  guess  at  the 
meaning  of  an  act  of  assembly  oftentimes,  where  words  and 
sentences  irreconcilable  with  each  other,  will  occur.  It  is 
but  a  conjecture,  in  many  cases,  what  the  construction  ought 
to  be. 

By  an  act  of  March  3d,  1812,  the  governor  was  "re- 
quired to  request  the  attorney  general  to  draught  and  pre- 
pare a  bill,  consolidating  the  whole  of  the  penal  laws  of  this 
commonwealth,  and  suggesting  what  additions,  alterations, 
and  changes  should  take  place  in  the  system,  for  the  pur- 


3S  Law  Miscellanies. 

pose  of  laying  before  the  next  legislature."  This  is  pre* 
cisely  what  was  delegated  to  judge  Wilson,  with  regard  to 
the  laws  in  general,  civil  as  well  as  penal ;  and  though  the 
injunction  and  request  to  the  attorney  general,  is,  under  this 
,  act  confined  to  the  penal  laws,  yet,  from  what  has  been  done, 
and  the  spirit  evinced  to  improve  the  legal  code,  there  can 
be  no  doubt  but  that  the  farther  prosecution  of  the  subject 
will  be  resumed,  and  delegated  to  some  person  or  persons 
competent  to  accomplish  what  had  been  projected,  and  dele- 
gated to  judge  Wilson,  and  which  the  attorney  general  has 
been  called  upon  to  do  in  the  case  of  the  penal  laws. 

It  will  occur  to  any  one  to  ask,  and  it  has  been  often  ask- 
ed, why  not  compile  a  system  of  what  is  called  the  common 
or  unwritten  law;  that  the  legislature  having  it  under  their 
view,  may  restrain  or  abolish  as  they  think  proper  ?  It  has 
been  already  done  in  the  outline  ot  these  commentaries  j* 
but  embracing  an  outline  of  both  common  and  statute  law. 
But  it  is  but  an  outline  that  in  any  reasonable  compass 
could  be  given.  But  the  common  law,  which  is  called  our 
birthright^  became  ours  in  our  colonial  state,  and  was  car- 
ried with  us  only  so  far  as  was  applicable  to  our  situation  ; 
and  hence  it  would  be  a  more  practicable  object  to  ascertain 
and  select  what  parts  or  principles  of  the  common  law  ive 
did  not  bring  with  us^  not  being  applicable  to  our  situation. 
This,  cut  out  of  the  mass,  it  would  be  more  easy  to  show, 
than  to  say  what  had  been  left  behind.  In  the  notes  to  the 
outline  given  in  these  commentaries,  it  may  be  pointed  out 
to  the  student,  what  of  the  common  law  has  been  left  behind  j 
referring  to  the  contrary  usages  by  which  the  common  law 
has  been  changed ;  and  to  such  parts  and  principles  as  are 
not  applicable  ;  at  the  same  time  referring  to  acts  of  the  colo- 
nial legislature,  or  since  the  revolution,  by  which  they  have 
been  abrogated.  A  more  compendious  outline  of  the  common 
or  statute  law  might  be  given,  omitting  all  that  is  unknown 
to  our  code  ;  but  to  the  law-student,  it  would  still  be  requi- 
site to  take  a  general  view  of  the  whole  system  of  the  Eng- 
lish law  ;  and  this  from  the  interlacing  of  the  branches  of  the 

*  Blackstone's. 


Law  Miscellanies.  33 

Same  stock*  A  knowledge  of  the  ecclesiastical  law,  having 
no  church  establishment  in  this  state,  is,  perhaps  of  all,  the 
least  necessary;  yet,  some  general  knowledge  of  it,  cannot 
well  be  dispensed  with.  Nevertheless  a  compend  or  abridg-  • 
ment  of  the  common  law  as  retained  by  us,  and  of  the  sta- 
tute law,  British  statutes  introduced,  or  our  own  statutes, 
might  be  compiled  for  the  use  of  such  as  are  not  of  the  pro- 
fession. This,  in  the  hands  of  the  people,  would  be  desirable  ; 
for,  in  that  case  there  would  be  no  great  danger  that  every  man 
would  commence  his  own  lawyer ;  but  rather  that  knowing 
something  of  the  law,  he  might  use  his  knowledge  to  avoid 
litigation.  Where  the  attainment  of  office  is  open  to  every 
man,  some  acquaintance  with  the  common  and  statute  law 
ought  to  be  possessed  if  possible  by  every  one.  The  sci- 
ence of  law,   says  judge  Wilson,*  "  should  in   some  mea- 

*  sure  be  the  study  of  every  free  citizen,  and  of  every  free 

*  man.     Every  free  citizen,   and  every  free  man  has  duties 

*  to  perform  and  rights  to  claim.  Unless,  in  some  measure, 
'  and  in  some    degree,  he  knows  those   duties,   and   those 

*  rights,  he  can  never  act  a  just  and  independent  part.     In  a 

*  free  country,  every  citizen  forms  a  part  of  the  sovereign 

*  power  :    he   possesses  a  vote,  or  takes  a  still  more  active 

*  part  in  the  business  of  the  commonwealth.     The  right  and 

*  the  duty  of  giving  that  vote,  the  right  and  the  duty  of  tak- 

*  ing  that  share,  are  necessarily  attended  with  the   duty  of 

*  making  that  business  the  object  of  his  study  and  enquiry. 
'JntheU.  States,  every  citizen  is  frequently  called  upon  to 
'  act  in  this  great  public  character.  He  elects  the  legislature, 
'  and  he  takes  a   personal  share   in  the  executive  and  judi- 

*  cial  business  of  the  nation.     On  the  public  mind  one  great 

*  truth  can  never  be  too  deeply  impressed,  that  the  weight  of 

*  the    government  of  the  United  States,   and  of  each  state 

*  composing  the  union,  rests  on  the  shoulders  of  the   peo- 

*  pie.' 

Some  years  ago,  in  this  state,  a  current  set  strongly 
against  the  common  law  of  England ;  and  it  v/as  within  a 
point  of  being  abolished  by  the  legislature.    This  was  owing 

*  Lectures  on  Law,  part  1.  chap.  1.9. 
E 


34 


Law  Miscellanies. 


to  a  total  ignorance  of  what  it  was.  Editors  of  papers,  whd 
had  been  prosecuted  for  libels,  raised  this  hue  and  cry,  as 
it  may  be  called,  against  the  common  law.  It  may  contri- 
bute therefore,  as  the  prejudice  has  not  altogether  subsided, 
nor  the  misunderstanding  been  removed,  to  give  some  idea 
of  ihat  law  j  and  this  I  shall  do  by  a  quotation  from  the 
preface  to  Rolles'  abridgment,  said  to  have  been  written  by 
Sir  Mathew  Hale.  There  is  contained  also  in  this  preface 
some  idea  of  those  parts  of  the  law  which,  even  in  England, 
have  become  antiquated  ;  but  much  more  so  here. 

*  The  common  laws  of  England  are  not  the  products  of 
the  wisdom  of  some  one  man,  or  society  of  men  in  any  one 
age  ;  but  of  the  wisdom,  counsel,  experience,  and  obser- 
vation of  many  ages  of  wise  and  observing  men  :  where  the 
subject  of  any  law  is  single,  the  prudence  of  one  age  may 
go  far  ai  one  essay  to  provide  a  fit  law  ;  and  yet,  even  in  the 
wisest  provisions  of  that  kind,  experience  shews  us  that 
new  and  unthought  of  emergencies  often  happen,  that  ne- 
cessarily require  new  supplements,  abatements,  or  expla- 
nations ;  but  the  body  of  laws,  that  concern  the  common 
justice  applicable  to  a  great  kingdom,  or  commonwealth, 
is  vast  and  comprehensive  ;  consists  of  infinite  particulars  ; 
and  must  meet  with  various  emergencies  ;  and,  therefore, 
requires  much  time,  and  much  experience,  as  well  as  much 
wisdom,  and  prudence,  successively,  to  discover  defects 
and  inconveniencies,  and  to  apply  apt  supplements,  and  re- 
m;.dies  for  them  j  and  such  are  the  common  laws  of  Eng- 
land, namely  the  productions  of  much  wisdom,  time  and 
experience. 

*  The  common  laws  of  England  are  settled  and  known ; 
'  every  entire  new  model   of  laws   labours  under  two  great 

*  difficulties,  and  inconveniencies,  viz.  1.  That  though  they 

*  seem  specious  in  the  theory,  yet  when  they  come  to  be  put 

*  in  practice,  they  are  found  to  be  extremely  defective ;  ei- 

*  ther  too  straight  or  too  loose,  or  too  narrow,  or  too  wide ; 
'  and  new  occurrences,  that  neither  were,   or  well  could  be, 

*  at  first,  in  prospect,  discover  themselves,  that  either  dis- 
'  joint,  or  disorder  tlie  fabric ;  and  therefore  such  new  mo- 


Law  Miscellanies.  35 

dels,  continually,  stand  in  need  of  many  supplies,  and  a- 
batements,  and  alterations,  to  accommodate  them  to  com- 
mon use  and  convenience,  whereby,  in  a  little  time,  the 
original  is  either  wholly  laid  aside  or  in  a  great  measure 
lost  in  Its  amendments,  and  become  the  least  part  of  ihe 
law.  Again,  were  such  new  entire  models  of  laws  never 
so  good,  yet  it  is  a  long  time  before  they  come  to  be  well 
known,  or  understood,  even  to  those  whose  business  it 
must  be  to  advise  or  judge  according  to  them  ;  so  that  even 
a  more  imperfect  body  of  laws  well  known,  at  least  to  those 
that  are  to  advise  or  judge,  is  more  of  use  and  convenience 
to  the  good  of  society,  than  a  more  perfect  and  complete 
body  of  laws  newly  settled,  and  therefore  to  be  newly  learn- 
ed. 

'  The  common  laws  of  England  are  more  particular  than 
other  laws  ;  and  this  though  it  render  them  the  more  nume- 
rous,less  methodical  and  takes  up  longer  time  for  their  study, 
yet  it  recompences  with  greater  advantages ;  namely,  it 
prevents  arbitrariness  in  the  judge,  and  makes  the  law 
more  certain,  and  better  applicable  to  the  business  that 
comes  to  be  judged  by  it.  General  laws  are  indeed  very 
comprehensive,  soon  learned,  and  easily  digested  into  me- 
thod ;  but  when  they  come  to  particular  application,  they 
are  of  little  service,  and  leave  a  great  latitude  to  partiality, 
interest,  and  variety  of  apprehensions  to  misapply  them; 
not  unlike  the  common  notions  in  the  moralist,  which  when 
both  the  contesting  Grecian  captains  most  perfectly  agreed, 
yet  from  them,  each  deduced  conclusions  in  the  particular 
case  in  controversy,  suitable  to  their  several  desires  and 
ends,  though  extremely  contradictory  to  each  other.  It  has 
therefore  always  been  the  wisdom  and  happiness  of  this  law, 
not  to  rest  in  generals,  but  fitted  almost  to  all  particular 
occasions.  But  usage  and  disusage  hath  antiquated  much 
of  the  law,  and  statute  also  hath  taken  off  or  abridged  many 
titles ;  and  the  various  excesses,  and  alterations  in  point  of 
commerce,  and  dealing,  hath  rendered  some  proceedings, 
that  were  anciently  in  use,  to  be  no  more  useful ;  and 
some  that  were  anciently,  useful  to  be  now  less    useful  r 


36  Law  Miscfllanifs. 

*  hence  several  great  titles  in  tht-  lavvr  are  at  this  day  in  a  great 

*  measure  antiquated,  and  some  abridged,  and  reduced  into 

*  a  very  narrow  compass  and  use." 

The  learned  prefacer  goes  on  to  enumerate  a  number  of 
those  titles,  so  antiquated  in  their  application ;  or  so  abro- 
gated by  statute.  Nevertheless  it  will  be  of  use  to  the  stu- 
dent to  acquire  some  general  knowledge  of  these  titles,  and 
the  law  under  them,  in  order  the  better  to  understand  the 
reason  of  those  statutes  which  have  come  in  their  place;  or 
usages  which  have  superseded.  For  which  reason,  some 
learning  on  these  heads,  cannot  well  be  dispensed  with,  as 
throwing  light  on  the  law  which  now  exists 

If  titles  are  abrogated,  or  obsolete  in  England;  and 
usage  is  changed ;  how  much  more  so  in  our  colonization 
from  the  mother  country,  and  under  our  own  statutes,  and 
adjudications.  For,  as  has  been  seen,  it  is  only  so  much  of 
the  statute  law  as  has  been  introduced  ;  or  so  much  of  the 
common  law  as  applied  to  our  situation,  that  is  in  force. 
For  this  see  note  infra  to  page  39. 

During  that  period  in  Pennsylvania,  that  the  current  set 
so  strong  against  the  common  law  as  what  ought  to  be  abo- 
lished, some  sensible  publications  appeared  in  the  newspa- 
pers, and  excellent  treatises  by  way  of  pamphlet  from  the  press. 
Of  these,  that  by  counsellor  Hopkinson  of  Philadelphia,  is 
perhaps  the  best ;  but  without  his  signature.  It  deserves  to 
be  preserved ;  but  having  dwelt  so  long  on  this  subject,  I 
cannot  give  even  an  extract. 

A  very  useful  sfiep  was  taken  by  the  legislature  towards 
giving  the  public  some  idea  of  our  law  :  by  an  act  of  28th 
Feb.  1810,  provision  was  made  for  publishing  a  new  edition 
of  our  acts  of  Assembly,  '••  noting  under  each  act  the  deci- 
sions of  the  courts  of  Pennsylvania,  or  of  the  United  States, 
which  have  been  given  upon  the  construction  thereof;  the 
v/ork  to  be  examined  and  approved  by  the  judges  of  the  su- 
preme court ;  and  the  governor  authorised  to  appoint  some 
fit  person  to  superintend  the  said  publication."  It  has  been 
my  understanding  of  the  duty,  in  this  case,  that  the  exami- 
nation and  approbation  must  respect  what  of  the  work  to  be 


Law  Miscellanies.  SJT 

examined  and  approved,  was  of  such  a  nature,  as  to  come 
within  the  province,  more  peculiarly,  of  the  judges  }  and  this 
must  respect  the  not^s  of  judicial  decisions.  Nor  do  I  \x\\- 
dcrstand  it  that  the  approbation  can  be  considered  as  going 
farther  than  to  say,  that,  tht-re  had  been  reasonable  industry 
used  in  collecting  such  notes.  It  could  not  be  understood  as 
undertaking  to  say  that  such  decisions  had  taken  place  ia 
the  extent ;  much  less  to  vouch  for  the  correctness  of  the 
principles  laid  down*  It  could  not  be  the  intendment  of  the 
Legislature  to  give  a  father  effect  to  the  approbation  of  the 
judges  ;  for  that  would  be  makmg  th.  se  notes  a  part  of  the 
text,  and  the  decisions  equivalent  to  the  acts  themselves. 
My  idea  of  the  object  of  the  legislature  was  to  obtain  infor- 
mation of  decisions  which  had  taken  place  under  acts  of  As- 
sembly with  a  view  to  supplement  or  alteration  :  some  gene- 
ral knowledge  of  the  construction  which  had  been  given  by 
the  judiciary  branch,  in  order  to  such  amendments  by  the  le- 
gislature as  such  construction  would  seem  to  require.  In  sub- 
servience to  the  spirit  with  which  this  attempt  hath  been 
made  to  improve  our  jurisprudence,  it  may  be  suggested 
that  a  farther  step  might  be  taken.  By  the  act  of  the  28th 
Jan.  1777,  "  The  common  law  and  such  of  the  statute  laws 
as  had  been  in  force,  are  declared  binding."  With  regard 
to  the  common  law,  it  is  a  well  known  principle  that  so 
much  of  it  only,  could  have  been  carried  by  the  emigrants 
to  this  state,  as  was  applicable  to  their  situation  and  there- 
fore so  much  of  it  only  in  force.  What  of  it  was  applicable 
must  be  determined  by  the  courts  ;  or,  from  time  to  time,  by 
the  legislature.  In  cases  where  the  change  of  situation  might 
not  seem  to  warrant  the  courts  to  declare  the  common  law 
not  applicable,  the  legislature  alone  could  interfere.  As, 
for  instance,  in  the  case  of  a  jus  acrescendi,  or  survivorship 
in  joint-tenancy,  which  by  an  act  of  the  legislature  has  been 
lately  taken  away.  There  might  be  other  principles  pointed 
out,  which  would  seem  to  have  got  a  footing,  and  cannot  be 
changed  but  by  the  legislature  ;  such  of  them  as  would  seem 
to  have  become  rules  of  property^  and  above  the  power  of  the 
courts  to  alter.     Thus,  a  principle  of  the  common  law  has 


58  Law  Miscellanies. 

been  altered  in  regard  of  the  succession  to  real  estate,  in  the 
case  of  an  intestate  ;  not  only,  as  to  the  proportion  to  be  taken 
by  the  representative ;  but  as  to  the  offspring  of  the  re- 
presentatives taking  the  share  of  the  parent  in  equal  portions 
among  themselves.  See  act  of  Assembly  13  Ap.  1791,  and  of 
19th  Apr.  1794.  But  in  the  case  of  a  devise  to  one  dying 
before  distribution,  and  leaving  children,  it  has  been  decided 
that  an  intention  could  not  be  inferred  of  giving  to  the  chil- 
dren the  devise  to  the  parent,  and  therefore  the  children  could 
not  take  at  all,  1st  Bin.  546.  This  would  seem  to  require  a 
provision  that  the  children  of  a  devisee  shall  take  amongst 
them  what  the  devisee  himself  would  have  taken,  had  he 
been  alive  at  the  time  the  estate  came  to  be  divided. 

I  suggest  a  farther  step,  that,  under  the  act  of  April 
1807,  the  judges  of  the  supreme  court  were  confined  in  their 
report,  to  English  statutes  before  the  revolution ;  but,  as 
the  common  law  remained  the  great  mass  of  jurisprudence 
in  both  countries  ;  and  even  after  the  revolutionary  period, 
the  legislation  of  both  frequently  respected  the  same  subject, 
the  alteration  of  the  common,  or  statute  law,  as  it  was  before 
that  time,  might  deserve  to  be  looked  into,  and  in  some  in- 
stances followed  by  statutes  similar  to  those  passed  in  that 
country  since.  To  give  an  instance  of  what  I  mean;  in  the 
case  of  a  writ  of  mandamus  as  it  was  at  common  law,  this 
writ  has  been  rendered  more  effectual,  and  better  guarded 
by  the  statute  9th  Anne,  c.  20.  But  which  statute  the 
judges  could  not  report  as  introduced  here  ;  because  it  did  not 
appear  that  it  had  been  introduced  ;  though  they  might  well 
consider  it  as  containing  provisions,  which,  in  whole  or  in 
part,  were  necessary  to  the  like  effect,  in  this  commonwealth ; 
and  which  has  been  done  in  Virginia  by  an  act  of  the  legis- 
lature of  1798.  A  revision  also  of  the  law  in  the  case  of 
writs  of  error  would  seem  to  be  called  for,  to  some  extent; 
and  the  privilege  of  a  freeholder  in  the  case  of  process  also ; 
and  in  some  other  cases  which  it  would  require  time  and  at- 
tention to  specify. 


Law  Miscellanies.  39 

NOTE 

Il^TRODUCTORY  TO  THE  REPORT  OF  THE  JUDGES  ON  THE 

British  statutes  in  force,  Sec. 

By  an  act  of  Assembly  of  April  7,  1807  :  the  judges  of 
the  supreme  court  were  required  to  examine  and  report 
which  of  the  English  statutes  were  in  force  in  this  common- 
wealth, Sec.  The  following  is  my  note  to  the  chief  justice 
(Tilghman)  accompanying  the  whole  of  such  acts  as  made 
out,  on  my  investig-ation,  and  according  to  my  judgm.ent. 

"  Which  of  the  English  statutes  are  in  force  in  this  com- 
monwealth (Pennsylvania)  is  the  first  part  of  the  point  which 
is  to  be  examined.  In  order  to  ascertain  this,  it  would  be  ne- 
cessary to  retrace  our  judicial  history,  and  to  see  how  it  is 
that  any  of  these  statutes  can  be  in  force.  For  this  purpose 
I  take  up  our  own  statute  book  and  examine  whether  there 
is  any  law  which  goes  to  this,  posterior  to  our  present  consti- 
tution. No  law  was  necessary;  for  by  the  schedule  to  the 
constitution  which  makes  a  part  of  it,  it  is  provided  "that 
all  laws  of  this  commonwealth  in  force  at  thetimeof  makin{>; 
the  said  alterations  and  amendments  in  the  said  constitution, 
and  not  inconsistent  therewith ;  and  all  rights,  &c.  shall 
continue  as  if  the  said  alterations  and  amendments  had  not 
been  made."  I  am  struck  with  nothing  in  this  constitution 
that  is  inconsistent  with  the  English  statutes  that  were  itr 
force  before  the  odopting  it.  The  question  then  is  open  to 
enquire  which  of  the  English  statutes  were  in  force  before 
the  adopting  this  constitution. 

In  tracing  this  I  find  nothing  until  I  go  back  to  an  act 
of  the  legislature  under  the  constitution  altered  and  amend- 
ed by  the  present  constitution,  which  act  is  of  the  28th  Jan. 
1777;  and  entitled  "an  act  to  revise  and  put  in  force  such 
and  so  much  of  the  state  laws  of  the  province  of  Pennsylva- 
nia, as  is  judged  necessary  to  be  in  farce  in  this  common- 
wealth." In  this  act  it  is  provided  that  "  the  common  law, 
the  principle  which  it  contained  might  be  adopted  in  usage. 


40  Law  Miscellanies. 

and  such  of  the  statute  laws  of  England  as  have  been  hereto- 
fore in  force  m  the  said  province,  (Pennsylvania)  shall  be  in 
force,  except  as  in  hereafter  excepted."  These  exceptions  it 
will  behove  to  note  when  we  come  to  examine  which  of  the 
statute  laws  of  England  had  been  heretofore  in  force  in  the 
said  province  ;   now  state  of  Pennsylvania. 

Theie  is  no  law  of  the  late  province  extending  English 
statutes  generally  ;  though  there  are  acts  adopting  the  provi- 
sions of  certain  particular  statutes.  But  were  not  the  Eng- 
lish statutes  in  force  in  the  late  province  independent  of  any 
legislative  act  of  the  province ;  I  speak  of  those  acts  that 
had  passed  after  the  settlement  of  the  province  ?  "  English 
acts  of  parliament  made  in  England,  without  naming  the 
foreign  plantations  will  not  bind  them"  2  Peere  Will  75. 
"  i  hey  are  subject  however  to  the  controul  of  parliament, 
though  not  bound  by  any  acts  of  parliament,  unless  particu- 
larly  namedy  1  Black.  Com.  104.  It  would  seem  from 
hence  that  the  English  jurists  did  not  consider  such  statutes 
in  force  here  as  did  not  particularly  name  the  plantations^ 
and,  by  force  of  that  term,  comprehend  the  late  province. 
Several  English  statutes  were  enacted  naming  the  plantations  ; 
that  is,  extending  the  statute  to  the  plantations.  But  the 
force  of  a  statute  here,  under  that  predicament  never  came 
to  be  examined  until  the  6th  of  Geo.  III.  c.  12.  which  ex- 
pressly declares  "  that  all  his  majesties  colonies  and  planta- 
tions in  America,  have  been,  are,  and  of  right  ought  to  be 
subordinate  to  and  dependent  upon  the  imperial  crown  and 
parliament  of  G.  Britain,  who  have  full  power  and  authority 
to  make  laws  and  statutes  of  sufficient  validity  to  bind  the  co- 
lonies and  people  of  America  subjects  of  the  crown  of  G. 
Britain  in  all  cases  whatsoever."  The  attempt  to  carry  this 
power  and  authority  into  effect,  gave  rise  to  the  revolution, 
and  solved  the  question  that  no  English  statute  was  in  force, 
in  a  colony,  plantation,  or  province  even  by  particularbj  7ia7n- 
ing  it.  It  will  not  be  alleged  that  the  judicial  power  of  the 
province  had  authority  to  extend  an  English.statute  passed  after 
the  settlement  of  the  province  and  put  in  force  here  ;  or  that 
it  could  be  in  force  rn  any  way  as  an  English  statute,  though 


Law  Miscellanies,  41 

But  in  that  case  it  could  not  be  said  that  an  English  statute 
was  in  force,  but  a  principle  derived  from  it.  This  may  be 
said  to  amount  to  the  same  thing  with  the  statute  being  in 
force,  and  to  be  equally  recognized  by  the  act  of  January 
28th,  1  m^  which  provides  "  that  such  of  the  statute  laws  of 
England  as  have  been  heretofore  in  force,  shall  be  in  force 
except  as  herein  excepted." 

But  I  do  not  see  that  it  can  be  admitted  that  an  English 
statute  could  be  said  to  be  in  force  by  its  own  enacting,  even 
though  the  colonies  are  particularly  named  in  it ;  notwith- 
standing as  late  as  1782,  an  expression  is  attributed  to  the 
court  in  the  case  of  the  lessee  of  Morris  vs.  Vanderen, 
which  would  seem  to  imply  that  the  idea  was  then  enter- 
tained that  it  would  be  in  force.  "  It  is  the  opinion  of  the 
court  that  the  cotnmon  law  of  England  has  always  been  in 
force  in  Pennsylvania ;  that  all  statutes  made  in  Great 
Britain  before  the  settlement  of  Pennsylvania,  have  no  force 
here  unless  they  are  convenient  and  adapted  to  the  circum- 
stances of  the  couitr)' ;  and  that  all  statutes  made  since  the 
settlement  of  Pennsylvania,  have  no  force  here  unless  the 
colonies  are  particularly  named^ 

But  if  it  be  admitted  that  an  English  statute  would  be 
in  force  by  particularly  naming  the  colonies,  so  as  to  estab- 
lish a  rule  of  property,  or  a  principle  of  municipal  regula- 
tion, I  do  not  see  how  we  can  justify  the  opposition  to  an 
English  statute  imposing  a  direct  tax  j  much  less  to  a  statute 
which  went  indirectly  to  collect  a  revenue  by  duties  on  in- 
ternal or  external  commerce. 

Nor  am  I  al>le  to  conceive  that  by  an  adjudication  of  the 
courts  any  principle  could  be  legally  derived  from  a  statute 
passed  subsequent  to  the  settlement  of  the  province,  unless 
within  that  sphere  where  the  judiciary  have  a  power  to 
adopt  rules,  independent  of  the  legislature,  and  which  must 
be  confined  to  the  rules  of  pleading  and  the  forms  of  justice* 
Unless  it  be  that  the  idea  may  at  first  have  been  entertain- 
ed in  the  province,  which  prevailed  in  England,  that  a  statute 
was  in  force  in  the  plantations,  where  they  were  particularly 
named ;  and  that  from  thence  there  was  an  acquiescence  in 

F 


42  Law  Miscellanies. 

the  application  of  them  by  judicial  determinations ;  until  the 
statute  of  6  Geo.  III.  c.  12.  and  onward,  presented  this  prin- 
ciple in  so  full  a  view,  as  to  put  an  end  to  all  acquiescence, 
in  the  most  distant  exertions  of  it.  How  far  the  principle, 
or  provisions  of  a  statute  may  have  been  adopted,  and  may 
have  got  a  footing  in  our  jurisprudence  in  this  way,  and 
how  sanctioned  by  the  28th  of  January,  ITTT,  becomes  a 
matter  of  no  easy  ascertainment,  if  the  duty  assigned  can  be 
thought  at  all  to  embrace  it. 

Virginia  has  expressed  herself,  as  to  statutes  before,  and 
since  the  settlement  of  the  colony,  with  precision  on  this  point. 
'•'•  The  same  convention  which  established  the  constitution 
judged  it  expedient  to  pass  an  ordinance,  declaring  that  all 
statutes  or  bills  made  in  aid  of  the  common  law,  prior  to  the 
4th  year  of  James  the  1st,  and  which  are  of  a  general  nature 
not  local  to  that  kingdom,  so  far  as  the  same  may  consist 
with  the  several  ordinances,  declarations,  and  resolutions  of 
the  general  convention,  shall  be  considered  as  in  full  force, 
until  the  same  be  altered  by  the  legislative  power  of  the  co- 
lony."    Tuck.  Black.  Appendix  444. 

I  take  it  that  our  legislature  in  the  act  of  Jan.  28,  1777y 
could  not  have  meant  more  ;  it  is  observable  that  the  legis- 
lature of  the  province  in  many  acts  from  time  to  time,  have 
adopted  the  English  statutes  in  the  same  w:xrds  or  to  the  same 
effect;  which  would  seem  to  shew  their  sense  to  be,  that 
without  a  legislative  sanction  no  English  statute,  passed  sub- 
sequent to  the  settlement  of  the  province  could  be  in  force. 
This  I  think  is  the  point  of  view  in  which  it  ought  to  be  consi- 
dered, and  that  we  cannot  undertake  to  say  ;hat  any  English 
statute  is  in  force  which  passed  subsequent  to  the  settlement  of 
the  province.  But  if  a  statute  should  occur  to  oar  examination, 
which  though  since  the  settlement  of  the  province  has  been 
passed  by  the  English  legislature,  and  adopted hy  the  adjudi- 
cations of  the  courts,  it  may  come  under  the  head  of  "  such 
statutes  as  ought  to  be  incorporated  into  the  statute  laws  of 
this  commonwealth ;"  and  may  be  reported  as  such. 

With  respect  to  such  of  the  English  statute  laws  as  were 
in  force,  at  the  settlement  of  the  province,  a  great  part  have 


Law  Miscellanies.  43 

been  suspended  by  acts  of  the  legislature  of  the  late  pro- 
vince ;  or  by  our  constitutions  since  the  revolution  ;  or,  by 
acts  of  the  legislature  of  the  state.  The  question  therefore 
will  be  narrowed,  in  the  first  instance,  to  what  English  sta- 
tutes were  in  force  at  the  settlement  of  the  province. 

By  the  charter  of  the  province  to  William  Penn,  sec.  6, 
it  is  stipulated,  "  that  the  laws  for  regulating  and  governing 
of  property  within  the  said  province,  as  well  for  the  de- 
scent and  enjoyment  of  lands,  as  likewise  for  the  enjoyment 
and  succession  of  goods  and  chattels,  and  likewise  as  to  fe- 
lonies, shall  be  and  continue  the  same  as  they  shall  be  for 
the  time  being,  by  the  general  course  of  the  law  in  our  king- 
dom of  England,  until  tlie  said  laws  shall  be  altered  by  the  said 
William  Penn,  his  heirs  or  assigns,  and  by  the  freemen  of  the 
said  province,  their  delegates,  or  deputies,  or  the  greater  part 
of  them."  But  this  general  extension  of  the  laws  of  England 
cannot  be  taken  without  exception ;  and  that  exception  must  be 
taken  from  the  general  law,  to  which  every  stipulation  must  be 
subject,  and  which  law  is  founded  in  the  nature  of  colonization, 
which  cannot  carry  with  it  all  the  regulations  of  the  parent 
country,  but  such  only  as  have  subjects  to  attach  upon  and  are 
not  excluded  by  the  change  of  situation.  "  If  there  be  a 
new  and  uninhabited  country  found  out  by  English  subjects, 
as  the  law  is  the  birthright  cf  every  subject,  so  wherever 
they  go  they  carry  their  laws  with  them,  and  therefore  such 
new  found  country  is  to  be  governed  by  the  laws  of  England." 
Peere  Will.  75.  Salk.  411,  666.  "  But  this  must  bc^  under- 
stood with  very  many  and  very  great  restrictions.  Such  co- 
lonies carry  with  them  only  so  much  of  the  English  law  as  is 
applicable  to  their  own  situation,  and  the  condition  of  an  in- 
fant colony."  Black.  Com.  107,  and  Tuck.  ap.  443,  "  our 
forefathers  migrating  to  this  new  country,  brought  with  them 
all  the  laws  of  the  parent  state  which  were  applicable  to  their 
own  condition,  and  circumstances,  and  this  extended  not 
only  to  the  common  and  unwritten  law,  but  also  to  the  writ- 
ten laws  of  the  kingdom  from  whence  they  emigrated.  But 
this  principle  extends  only  to  the  existing  laws  of  the  parent 


44  Law  Miscellanies. 

state,  at  the  time  of  the  colony  being  settled,  aad  not  to  such 
as  should  be  thereafter  made." 

In  the  case  of  the  commonwealth  vs.  Mesca  and  others, 
1  Dal.  74,  75,  the  chief  justice  makes  a  query,  whether  it  was 
intended  by  the  act,  meaning  that  of  28th  Jan.  1 T77  to  include 
only  such  acts  as  were  in  force  by  an  express  extension  of 
the  legislature  or  to  comprehend  likewise  such  statutes  as 
had  been  extended  by  the  judgment  of  the  supreme  courty 
or  received  there  in  usage,  which  seemed  to  him  to  be  in 
some  degree  uncertain.  1  Dal.  74.  A  statute  expressly  ex- 
tended by  the  legislature,  became  an  ac!  of  the  colony,  under 
the  proprietary  government,  and  had  been  comprehended 
under  the  preceding  part  of  sec.  2.  cf  the  act  of  28th  Jan. 
1777  ;  "  each  and  every  one  of  the  laws,  or  acts  of  general 
assembly  that  were  in  force  and  binding  on  the  inhabitants 
of  the  said  province  shall  be  in  force  and  binding  on  the 
inhabitants  of  this  state."  Whence  it  appears  to  me  that 
the  sentence  of  the  section  whicb  follows,  and  provides  for 
the  statute  laws  of  England  can  mean  only  such  of  the  sta- 
tute laws,  as  were  in  force  by  their  own  operation  as  appli- 
cable to  the  situation  of  the  cdony  under  the  proprietary 
government. 

Here  opens  the  field  which  is  now  to  be  traversed ; 
which  of  the  statute  laws  of  England  were  applicable  to  the 
infant  colony  settled  under  the  charterto  William  Penn ;  and, 
were  this  left  to  the  exercise  of  judgment  as  a  question  to 
be  determined  for  th^  first  lime,  by  any  one,  the  mind 
would  be  free  to  draw  the  conclusions  as  to  what  statutes 
were  applicable,  to  the  situatiot,  and  in  force  in  the  new  co- 
lony. But  it  has  been  a  subject  of  judicial  consideration 
even  since  the  first  establishment  of  the  courts,  as  a  case  ar- 
rived which  would  come  under  a  statute  of  the  present  state, 
to  say  whether  that  statute  or  any  part  of  it^  was  applicable^ 
and  could  be  adopted  here.  Hence  it  becomes  a  matter  of  evi- 
dence what  statutes  have  been  in  force  by  the  adjudications 
of  the  supreme  court,  and  to  be  collected  amongst  other  means 
of  information,  even  from  oral  testimony^  as  would  appear 
from  the  case  aforementioned  of  the  commonwealth  vs  Mes- 


Law  Miscellanies.  45 

LA  and  others,  where  the  chief  justice  in  addition  to  what 
was  before  stated,  goes  on  to  observe  that  "  if  this  was  a 
new  case  the  judgment  of  the  court  would  be  different,  on 
the  ground  however  of  the  precedent  we  hold  ourselves  bound. 
1  Dal.  75."  This  depended  on  the  oral  testimony^  given  in 
court,  of  a  trial  where  the  statute  in  question  was  held  to  be 
in  force  and  the  privilege  of  it  extended  to  the  accused.  It 
may  be  easily  conceived  that  when  a  statute  comes  in  ques- 
tion in  the  first  instance,  it  cannot  always  be  a  matter  of  ea- 
sy determination  whether  it  comes  under  the  predicament 
of  a  statute  which  applies  to  the  situation  and  circumstances 
of  the  new  government.  For  being  a  matter  of  reason  and 
judgment,  requiring  information,  and  sound  discernment, 
the  mind  of  a  discreet  man  must  deliberate  carefully  and  de- 
cide cautiously.  Hence  the  researches  and  argument  of 
counsel  learned  in  the  laws,  and  policy  of  the  respective  go- 
vernments, is  useful  to  assist ;  and  it  is^  oftentimes  a  discus- 
sion of  much  length,  to  enable  a  conscientious,  and  prudent 
court,  to  make  up  an  opinion,  whether  the  point  has  been  de- 
cided, in  a  particular  case.  To  consider  it  as  subject  to  a 
new  discussion  when  the  same  statute  comes  again  in  ques- 
tion, would  be  an  endless  task,  and  involve  continual  uncer- 
tainty. Evidence  therefore  of  a  preceding  determination, 
will  be  received,  and  bind,  where  the  same  principle  agaia 
presents  itself.  This  evidence  must  be  the  recollection  of  those 
present  at  the  adjudication :  or  in  a  remote  case,  some  me- 
morandum, preserved  in  the  notes  of  the  judge;  or  the  prac- 
titioners of  the  law ;  or  introduced  in  practice,  and  communi- 
cated like  the  rules  of  a  legislative  body,  or  the  laws  of  a 
game  at  school ;  the  preceding  decision  being  a  guide  to  the 
next,  until  it  grows  into  usage,  and  is  known  and  considered 
as  an  established  principle.  "  We  know  that  many  English 
statutes  for  near  a  century  have  been  practised  under  in  the 
late  province,  which  were  never  adopted  by  the  legislature, 
and  that  they  might  be  admitted  by  usage  and  so  become  in 
force."  1.  Dall.  75,  This  last  must  be  the  principal  source 
of  our  knowledge  on  this  head ;  for  during  the  century  which 
elapsed  under  the  judicature  of  the  province,  scarcely  a  ves- 


46  Law  Miscellanies. 

tige  remains  of  the  adjudications  of  the  courts  in  any  written 
document ;  and  yet  it  must  have  been  during  this  time  that 
the  provisions  of  the  English  statutes  found  their  way  into 
our  jurisprudence.  At  this  day  it  is  often  a  matter  of  solid 
argument,  and  resting  on  the  reason  of  the  application  or  the 
tradition  of  practice,  whether  a  statute  is  in  force,  or  not.  And 
the  judges  are  now  called  upon  to  a  task  which  in  the  opinion 
of  some  might  be  better  left  to  be  investigated,  as  the  point 
arises,  and  comes  to  be  disposed  of  on  trial  in  the  courts  j  and 
this  I  take  it  remains  the  case  in  most  of  the  states  at  this 
day.  But  the  state  of  Virginia  has  set  the  example  to  this 
state,  by  endeavouring  to  ascertain  and  reduce  to  a  certainty 
what  of  the  English  statutes  were  in  force  at  the  revolution, 
and  which  of  them  ought  to  be  adopted.  What  has  been  done 
on  this  head  may  be  seen  in  Tucker's  Black.  Com.  443,  '4,  '5. 
It  was  a  matter  of  time  in  that  state,  and  though  taken  up  Oct. 
1776,  was  not  completed  until  1792.  It  was  done  by  commit- 
tees of  succesive  legislatures  with  the  assistance  of  profession- 
al men  who  were  of  the  committees,  or  who  contributed  their 
information,  and  advice  as  they  were  consulted.  "  At  the 
same  session  (1772)  says  Tucker,  the  assembly  passed  an 
act  repealing  under  certain  restrictions,  all  statutes  or  acts  of 
the-  parliaments  of  Great  Britain  heretofore  in  force  within 
this  commonwealth,  with  a  proviso,  that  all  rights  arising 
under  any  such  statute  or  act  shall  remain  in  the  same  con- 
dition, in  all  respects  as  if  this  act  had  never  been  made." 

From  the  above  sketch  it  may  be  seen  that  it  is  not  the 
labour  of  an  hour  which  has  been  enjoined  upon  the  judges 
of  the  supreme  court  of  this  state  by  the  late  act  of  the  legis- 
lature ;  and  though  there  are  four  judges,  yet  the  labour  to 
every  one  must  be  the  same,  each  finding  it  necessary  to  ex- 
amine for  himself. 

But  though  it  may  be  necessary  to  evolve  many  volumes, 
and  investigate  much  in  this  research ;  yet  I  cannot  think 
when  statutes  are  referred  to,  the  whole  or  a  part  of  which 
may  be  considered  as  in  force,  the  section  can  be  of  great 
bulk.  For  the  greater  part  were  of  such  a  nature  originally, 
as  could  not  apply  to  the  situation  of  the  colony,  under  the 


Law  Miscellanies.  47 

charter  to  William  Penn ;  or  have  been  superceded  by  the 
laws  of  the  province ;  or  of  the  since  state.  "  Colonists  car- 
ry with  them  only  so  much  oi  the  English  law,  as  is  applica- 
ble to  their  own  situation  ;  and  the  condition  of  the  infant 
colony  ;  such  for  instance  as  the  general  rules  of  inheritance 
and  of  protection  from  personal  injuries.  The  artificial  re- 
finements and  distinctions  incident  to  the  property  of  a  great 
and  commercial  people ;  the  laws  of  police  and  revenue  (such 
as  are  especially  enforced  by  penalties)  the  mode  of  main- 
tainance  for  the  established  clergy,  the  jurisdiction  of  spiri- 
tual courts,  and  a  multitude  of  other  provisions  are  neither 
necessary,  or  convenient  for  them,  and  therefore  are  not  in 
force."   1  Black.  Com.  102,103. 

But  when  reduced  by  this  criterion,  the  English  statutes 
must  be  still  more  abridged,  by  the  original  charter  of  in- 
corporation, of  the  settlement ;  or  in  addition  to  this  by  the 
conditions  on  the  part  of  the  proprietary  with  the  first  set- 
tlers ;  concessions,  or  charter  of  privileges  granted  them ; 
but  still  more  by  the  acts  of  the  legislature  under  the  pro- 
vince. For  though  an  English  statute  which  might  otherwise 
extend,  be  not  expressly  repealed,  yet  it  may  by  implication  ; 
and  is  so  considered,  where  it  is  on  the  same  subject;  not- 
withstanding it  may  adopt,  but  a  part  of  the  provisions  of 
the  English  statute  in  lieu  of  which  it  would  seem  to  be  in- 
troduced. 

Nevertheless,  though  the  statutes  will  be  found  to  be  few 
in  number,  that  can  be  said  to  be  in  force  ;  yet  in  the  appli- 
cation of  them,  they  will  embrace  a  wide  extent;  not  only 
from  the  immediate  subject ;  but  also  from  what  has  been 
considered  in  England  ;  and  adopted  by  us,  as  v/ithin  the 
equity  of  them.  As  fur  instance,  the  statute  of  1  Rich.  II.  c. 
12.  under  which  an  action  of  debt  is  given  against  the  rvar- 
den  of  the  fieet^  for  au  escape  ;  this  statute  is  extended  by 
equity  to  all  sailors  and  officers  ;  and  here  as  in  other  instan- 
ces, whether  depending  on  the  express  words  of  the  statute, 
©r  considered  as  within  the  equitable  construction  of  it. 
A  duty  is  assigned  of  much  delicacy,  and  requiring  great  de- 
liberation.    For  thougl:  it  may  be  presumed  that  the  exi- 


48  Law  Miscellanies. 

gency  of  the  occasion,  taught  the  necessity,  or  policy  of  ap- 
plying any  one  at  first;  and  experience  being  the  best  test  of 
the  expediency  of  any  rule,  it  may  be  considered  as  the  same 
thing  to  say  what  has  been  the  adjudication,  or  the  usage,  as 
to  say  what  ought  to  be ;  yet  there  will  be  found  exceptions 
when  the  principle  is  taken  up  on  original  ground,  and  the 
mind  is  left  at  liberty  to  think  for  itself,  with  a  view  not  to 
judicial  decision,  but  legislative  reform.  As  in  the  instance 
adduced  of  the  state  of  1  Rich.  II.  which  gives  the  writ  of 
debt  on  an  escape,  and  subjects  the  officer  to  the  whole  de- 
mand, instead  of  the  writ  on  the  case  at  common  law,  under 
which  might  be  taken  into  view  the  solvency  of  the  debtor  ; 
and  the  probable  damages  sustained  by  the  creditor. 

It  is  true,  that  this  last  part  of  the  duty  assigned,  the 
saying  which  of  the  statutes  in  force,  ought  to  be  incorpora- 
ted, goes  but  to  matter  of  opinion  as  to  the  policy  or  general 
convenience  of  any  rule ;  yet  it  must  be  viewed  as  a  trust  of 
high  confidence,  and  demanding  the  best  attention  that  can 
be  paid  to  it.  And  though  the  research  and  inquiry,  under 
the  first  head,  ascertaining  what  statutes  are  in  force,  em- 
bracing matter  of  fact  in  a  great  measure,  maybe  of  more  la- 
bour, yet  the  last,  the  determining  what  ought  to  be  incorporat- 
ed, will  require  equal  thought,  and  reflection.  Hence  it  will  be 
comprehended  how  much  time  the  duty  assigned  must  neces- 
sarily call  for,  and  where  that  time  can  be  taken  but  by  in- 
tervals, to  what  length  the  completing  the  task  must  be  pro- 
tracted. And  though  numbers  may  at  first  sight,  seem  to 
promise  a  quicker  dispatch,  yet  in  fact  it  must  be  a  cause  of 
delay.  For  though  it  may  answer  the  end  in  view,  and 
doubtless  will  answer  it,  of  greater  wisdom,  or  judgment  in 
the  execution,  yet  where  the  same  ground  is  to  be  gone  over 
by  every  one,  each  being  responsible,  and  under  the  necessity 
of  examining  the  deductions  of  the  others,  so  as  to  be  able 
to  concur,  or  if  obliged  to  dissent,  to  fix  the  reasons,  with 
precision  in  his  mind;  and  to  draw  them  out  with  satisfac- 
tion to  himself;  it  will  be  understood  why  it  is  that  a  com- 
pliance more  prompt  has  not  been  made  with  the  fulfilment 
of  what  has  been  enjoined.     I  say  fulfilment,  because  the  mo- 


Law  Miscellanies.  49 

ment  the  notification  was  made  of  the  act  of  assembly  urtder 
which  the  duty  arises,  the  utmost  attention  was  paid  to  it,  and 
the  minds  of  each  turned  to  the  object  as  much  as  the  discharge 
of  usual,  and  indispensable  official  duties,  rendered  possible.'* 

So  far  my  note  to  the  chief  justice.  The  report  made 
to  the  legislature  was  directed  by  them  to  be  printed;  but 
no  law  his  yet  taken  place  incorporating,  but  these  acts  stand 
on  the  same  foundations  as  formerly ;  nor  can  the  courts  be 
considered  as  absolutely  bound  by  this  report,  but  tlie  ques- 
tion still  open  to  further  investigation  when  any  particular 
statute  comes  in  question.  Some  may  be  found  to  have  beeti 
overlooked  in  the  research  which  has  been  made,  which, 
either  from  the  nature  of  the  provision,  or  from  introduction, 
had  been  in  force. 

But  though  the  above  was  the  object  to  which  the  atten- 
tion of  the  legislature  was  directed  at  this  time ;  yet  the 
effect  or  binding  authority  of  British  decisions,  whether  on 
the  constructions  of  statutes,  or  on  principles  of  the  common 
law,  was  a  question  in  the  minds  of  the  public.  For  by  an 
act  of  assembly  of  the  19th  March,  1810, "  it  shall  not  be  law- 
ful to  read  or  quote  any  British  precedent  or  adjudication, 
which  may  have  been  given  or  made  subsequent  t43  the  4th 
July,  1776;  provided  that  nothing  therein  shall  be  construed 
to  prohibit  the  reading  of  any  precedent  of  maritime  law,  or 
of  the  law  of  nations."  This  Wpnld  seem  to  have  proceeded 
under  the  idea  of  these  precedents  or  adjudications  having 
been  received  by  the  courts  as  authority  theretofore  which 
was  not  the  case.  The  following  had  been  my  ideas  on  the 
subject,  a  note  of  which  I  had  made  in  order  to  hand  it  to 
some  member  of  the  legislature  while  the  law  which  after- 
wards passed,  was  in  agitation. 

"  A  distinction- is  taken  between  a' decision  of  the  Eng- 
lish courts  prjor"  to  our  entire  separation  from  that  govern- 
ment, by  the  declaration  of  independence  on  the  4ih  July, 
17"f6,  and  a  decision  of  those  courts  since  that  separation.  I 
am  not  able  to  say  that  there  is  not  a  distinction.  But  it  is 
in  contemplation  of  law  only ;  and,  in  fact,  amounts  to  no- 
thing-.    Forall  admit  that  though  the  decision  posterior  to 

G 


5(5  Law  Miscellanies. 

our  independence  will  not  govern  as  precedent,  it  will  guide 
as  reason.  Why  is  it  that  the  anterior  to  our  declaration  of 
independence  shall  govern  as  precedent  ?  This  depends  on  the 
5th  chapter  of  the  charter  to  Wm.  Penn,  which,  granting 
power  to  establish  courts  of  justice,  reserves  to  the  "  King, 
his  heirs  and  successors,  the  receiving,  hearing  and  deter- 
mining of  the  appeal  touching  any  judgment  to  be  there  made 
or  given."  The  acquiescence  of  a  decision  of  the  provin- 
cial courts  is  supposed  to  carr}'  with  it  a  tacit  acknowledg- 
ment of  correctness  ;  yet,  in  fact,  we  know  that  the  distance 
of  the  tribunal  of  appeal,  and  across  a  perilous  ocean,  and 
the  expense  of  prosecuting  an  appeal  constituted  in  most  cases 
a  bar  to  the  making  it.  So  that  it  cannot  be  inferred  actually 
that  where  there  was  no  appeal,  there  was  no  dissatisfaction 
with  the  prmciple  of  the  decision. 

But  did  not  the  provincial  courts  during  the  connection 
with  the  English  government  possess  a  concurrent  right  with 
the  English  courts  to  examine  antecedent  decisions ;  and  to 
canvass  the  reason ;  or  correctness  of  them,  as  much  as  the 
English  courts  themselves  ?  The  English  courts  do  enquire 
into  the  reason  and  correcttiess  of  decisions  ;  and  to  this  is 
owing  much  improvement  of  the  law.  Did  we  dare  to  fol- 
low them  in  these  decisions,  reviewing  and  departing  from 
decisions  ?  We  did  follow  them ;  for  there  was  not  a  judge 
upon  the  bench  who  would  not  say,  such  tvas  the  law,  but  the 
late  decisions  are  otherzvise.  For,  from  the  acquiescence  there, 
and  the  prosecuting  no  writ  of  error,  to  the  court  in  the  last 
fesort, the  presumption  was  that  it  was  the  law;  and  that 
sho\dd  a  contrary  decision  be  made  here,  and  an  appeal  pro- 
secuted under  our  charter  provision,  it  would  be  reversed. 
Hence  so  far  as  the  common  law  or  statute  law  of  England 
remained  common  to  both  countries,  decisions  on  the  same 
law  remained  equally  guides  to  both.  But  the  decision  of 
the  mother  country  only  could  be  supposed  to  have  weight  to 
guide.  Why  should  they  not  be  supposed  to  have  weight 
still  i  All  the  difference  is  that  in  the  one  case  we  could  not 
use  our  own  reason  without  knowing  that  it  might  be  pro- 
nounced erroneous  in  the   court  of  the  last  resort   there; 


Law  Miscellanies.  SI 

and  that  now  we  may  use  It,  without  looking  to  such  conse- 
quence. But  shall  we  regard  the  reason  and  sense-  of  tli-iU 
less  because  they  cannot  say  we  shall  regard  it  ?  Voluntniy 
submission  is  a  legitimate  authority.  Decisions  of  the  Eng- 
lish courts  since  our  separation  have  made  great  improve- 
ments on  that  portion  of  the  law  which  is  common  to  us 
both.  Where  our  reason  tells  us  that  it  is  an  improvement 
in  giving  light  in  the  administration  of  justice,  shall  we  not 
follow  it  for  its  own  sake,  as  much  as  if  there  was  a  princi- 
ple which  says  we  shall  do  it  ?  All  the  difference,  is,  that  be- 
fore our  separation  we  might  be  bound  to  follow  error,  and 
now  only  truth.  With  respect  to  English  decisions  there- 
fore, since  our  separation  I  am  willing  to  take  all  advantage 
of  them  as  much  as  if  they  were  forced  upon  me  ;  so  that 
it  is  but  in  idea  that  I  distinguish  them  as  authorities.  For 
I  do  not  think  that  the  act  of  our  legislature  immediately  on 
our  separation,  and  which  is  of  the  28th  Jan.  1777,  by  which  it 
is  provided  that  the  common  law  and  such  of  the  statute  lazvs 
of  England  as  had  heretofore  been  in  force  should  be  binding 
here,  can  be  construed  as  fixing  upon  us  the  decisions  of  the 
English  courts,  either  in  matters  of  common  laxv  or  statute 
construction  ;  so  that  the  exercise  of  judicial  investigation 
should  be  restrained,  and  all  question  precluded.  On  the 
contrary,  I  would  entertain  the  idea  that  we  have  at  least  an 
equal  power  with  the  English  courts  though  we  might  ex- 
ercise it  with  less  confidence,  in  the  examination  and  appli- 
cation of  decisions.  And  in  the  course  of  that  examination 
and  application,  what  hinders  to  look  at  the  recognition  or 
rejection  of  principle  on  the  same  subject;  or  at  the  com- 
ments of  the  expounders  of  the  same  text;  and  if  we  look 
at  them  and  find  them  reasonable,  take  them  for  our  guides. 
In  fact  we  do  take  them  just  as  much  now  as  we  would  have 
taken  them  before  the  revolution;  and  we  might  just  as 
well  say  we  do,  as  that  we  do  not.  The  great  lights  that 
may  be  thrown  on  many  parts  of  the  law,  and  may  be  yet 
thrown  upon  it,  are  not  to  be  neglected.  The  science  is  im- 
proving there,  and  shall  we  refuse  ourselves  the  advantage 
of  any  help  ?    I  admit  that  respect  for   English  authorities, 


S2  Law  Miscellanies. 

may  beconfe  servility;  but,  that  is  as  likely  to  be  the  case, 
Gv  more  likel}',  with  regard  to  those  before  our  separation, 
than  those  since.  A  judge  of  the  court  in  the  last  resort 
here  may  claim  the  privilege  of  a  judge  of  the  court  of  last 
resort  in  England  in  reviewing  English  decisions  ;  which  are 
only  evidence  of  law ;  and  supposes  a  law  of  which  they 
are  the  evidence ;  and  to  which,  if  erroneous  they  ought  to 
-be  brought  back.  But  what  shall  be  the  test  of  that  error? 
I  know  nothing  but  the  mind  that  is  to  judge.  The  principle 
is  to  be  got  at ;  and  that  is  to  guide.  I  have  nothing  to  do 
in  these  observations,  with  that  part  of  the  law  that  is  mere- 
ly arbitrary  and  is  not  founded  in  reason,  but  where  the  ita 
esty  is  the  only  thing  that  can  be  said  about  it.  There  is 
such  a  thing  as  freedom  of  mind  in  a  judge;  and  narrow- 
ness of  judges  is  spoken  of  in  the  commentaries  of  law ; 
and  an  adstriction  to  decisions  is  a  fault.  But  it  is  in  the 
application  of  principle  to  case  that  the  error  consists ;  for 
I  have  no  idea  that  a  judge  has  a  power  to  make  a  principle, 
any  more  than  to  enact  a  statute  ;  but  in  application  of  prin- 
ciple to  case  error  springs ;  for  such  case  is  said  to  prove 
such  a  principle,  whereas  it  only  proves  that  such  a  principle 
was  applied  in  such  a  case.  It  is  true  that  as  a  great  part  of 
the  law  is  unwritten,  it  can  only  be  from  decisions,  or 
chiefly,  that  we  can  ascertain  the  principle  ;  and  in  matters 
where  reason  has  nothing  to  do  these  ought  to  be  conclusive. 
But  where  reason  can  have  a  place,  it  is  a  maxim  that  xvhat  is 
against  reason  cannot  be  laxv.  Here  the  advantage  of  the 
exercise  of  reason  in  deducing  the  principles  of  legal  sci- 
ence, and  the  first  lesson  to  a  student  of  the  law  ought  to  be, 
to  distrust  authority.  A  mere  automaton  of  decision,  is  lit- 
tle better  than  the  machine  that  plays  chess  by  springs. 

But  I  have  wandered  from  the  point  I  had  set  out  upon, 
the  weight  attributive  to  English  decisions  since  our  separa- 
tion from  that  government.  I  shall  only  add  a  word  or  two 
upon  the  abuse  of  citing  them.  For  I  call  it  abuse  to  take 
tip  time  in  reading  at  great  length  from  those  decisions  ;  and 
to  which  I  take  to  be  owing,  in  a  great  degree,  the  popular 
prejudice  against  tliem;  and  which  has  been  near  excluding 


Law  Miscellanies.  53 

them  altogether^*  which  I  should  consider  to  be  a  loss ;  for 
there  is  much  excellent  sense  to  be  found  in  them ;  and 
which  may  be  a  great  help  in  the  administration  of  justice. 
And  it  is  with  a  view  to  contribute  to  prevent  this  total  ex- 
clusion, that  I  have  been  willing  to  give  these  thoughts  pub- 
licity. The  public  opinion  is  that  the  courts  are  governed 
by  decisions  as  if  thvse  made  the  law ;  and  that,  from  the 
force  of  education,  and  profes-^ional  reading  we  are  adscript! 
glebis,  and  as  much  serfs  in  mind,  as  those  were  in  body  that 
used  to  g-o  with  the  clod.  It  ought  not  to  be  so ;  and  with 
some  exceptions  is  not  so  ;  and  it  is  a  great  matter  that 
it  should  be  understood  by  the  people,  that  unreasonable 
prejudices  may  not  be  excited,  or  exist.  My  idea  of  de- 
cisions posterior  to  the  revolution  is  this ;  that  they  are  the 
comments  of  men  upon  the  same  subject  with  that  which  we 
have  to  consider.  It  is  as  if  men  who  had  set  out  from  the 
same  place  and  having  travelled  together  a  certain  distance, 
had  parted;  but  having  occasion  to  refer  to  the  point  at 
which  they  had  set  out,  and  the  part  of  the  ground  travel- 
led together,  they  should  compare  notes  and  correct  their 
journals,  as  well  as  to  notice  the  improvements  that  might  be 
made,  or  to  co-operate  in  making  them.  It  it  is  true  that  this 
drew  upon  us  the  purchasing  and  reading  in  courts,  the 
new  books  and  late  reports  in  England  ;  but  it  saved,  in  a 
great  degree,  as  it  does  in  England,  the  consulting  old 
Looks  :  for  even  there  the  year  books,  and  Dyer,  and  many 
others  are  little  seen.  Many  of  them  are  out  of  print,  and 
not  to  be  got  at  with  us  at  all.  For  these  reasons  I  cannot 
say  that  I  would  be  unwilling  to  see  our  act  of  assembly 
repealed,  which  goes  to  preclude  the  reading  or  citing  in 
court  the  later  authorities. 

*  Since  excluded. 


S4<  Law  Miscellanies. 

ON  THE  STARE  DECISIS. 

IT  occurs  to  me  to  express  a  Tew  thoughts  on  the  respect 
due  to  prior  decisions.  Certain  it  is  that  the  stare  decis.s, 
is  a  salutary  maxim,  but  it  has  appeared  to  me,  that  ii  has 
been  carried  sufficiently  lar  in  this  country  :  in  Englund 
there  is  such  a  thing  as  a  departure  from  decided  cast  s ; 
and  where  there  is  not,  we  see  nevertheless,  in  many  instan- 
ces, great  dissatisfaction  expressed  with  decisions.  In  the 
very  first  case,  2  East,  280,  where  lord  Eilenborough  takes 
his  seat  upon  the  bench,  he  uses  tlicse  expressions  :  ''  11  this 
question  had  come  now  to  be  decided  for  the  first  time,  I 
should  have  been  prepared  to  decide  it  upon  the  plain  words 
of  the  statute  which  have  been  broken  in  upon  by  many  cast.s, 
laying  down  rules  of  construction  much  less  plain  than  the 
words  of  the  statute  itself."  And  again,  301,  "  As  the  case 
now  before  us,  is  in  terms  the  same  as  that  decided,  I  think 
it  is  better  to  abide  by  that  determination  than  to  introduce 
uncertainty  into  this  branch  of  the  law,  it  being  often  of 
more  importance  to  have  the  rule  settled,  than  to  dettrmine 
what  it  shall  be.  I  am  not  however  convinced,  by  the  reaaon- 
htg-  of  that  case,  and  if  the  point  were  new  Ishoidd  think  other- 
wise.''^ And  again,  3  East,  230,  "  If  the  case  were  res  integra 
I  should  have  done  no  more  than  apply  my  understand- 
ing." And  7  East,  60,  "  If  this  were  a  case  in  which  we 
were  called  upon  to  decide  for  the  first  time  upon  a  recent 
statute,  there  would  be  strong  ground  for  the  argument ;  but 
the  uniform  decision  has  been  otherwise,  and  that  opinion 
has  always  prevailed  in  practice,  though  perhaps  the  opinion 
obtained  at  first  without  duly  weighing  the  words.  But  af- 
ter so  great  a  length  of  time,  and  such  a  mass  of  property 
conveyed  in  this  manner,  it  would  be  too  much  now  to  say,  that 
all  which  has  been  done  is  erroneous^'' 

We  may  see  from  these  words  of  lord  Eilenborough  that 
a  series  of  decisions  is  not  always,  with  him,  conclusive  evi- 
dence of  what  is  right,  and  the  revising  the  decision  resolves 
itself  into  a  question  of  expediency  ;  and  that  will  depend  upon 


Law  Miscellanies.  ^S 

two  considerations,  the  "  quod  sit  nota"  of  the  rule  j  and 
that  of  property  having  been  changed  under  it. 

Lord  Kenyon,  the  pr^iceding  chief  justice,  came  upon 
the  bench  under  the  great  weight  of  a  name  just  before  him, 
and  having  for  associates  men  whom  he  found  there,  and 
who  had  participated  in  the  decisions,  which  he  would  have 
had  to  encounter,  had  he  undertaken  to  unsettle  any  of  what 
had  been  considered  as  established  during  that  period. 
Nevertheless  he  discovers  a  freedom  of  mind,  occasionally, 
with  regard  to  decisions  before  their  time,  as  3d  T.  R.  155, 
where  he  uses  this  expression,  "  The  question  must  be  ad- 
mitted on  all  hands  to  be  inter  apices  juris,  if  the  objection 
could  prevail,  it  would  not  be  because  it  is  built  on  grounds 
of  reason^  but  because  ita  lex  scripta  est ;  and  then,  however 
unreasonable  we  might  think  it,  we  would  not  be  warranted 
hi  trampling  on  a  series  of  decided  cases  to  overturn  it. 
But  it  does  seem  to  militate  against  every  idea  of  reason  and 
justice.  In  a  case  of  necessity  I  might  be  compelled  to  say, 
thctt  what  was  supposed  to  be  the  old  law  was  founded  on  mis- 
take, and  that  the  lazu  of  the  country  has  in  modern  times  been 
bett-r  adopted  to  general  convenience,''''  Here  one  may  observe 
that  this  adaptation  must  have  had  a  beginning,  and  this 
could  only  be  in  the  breaking  off  from  precedent. 

In  4  T.  R.  151,  he  gave  a  little  vent  to  his  impression, 
that  too  much  respect  might  be  paid  to  the  opinion  of  a 
great  judge  ;  he  observes  that  '^  it  is  not  now  necessary  to 
consider  whether  lord  Holt  were  right ;  in  so  pertinaciously 
adhering  to  his  opinion  before  the  statute  of  Ann,  that  no 
action  could  be  maintained  on  promissary  notes  as  instru- 
ments, but  that  they  were  only  to  be  considered  as  evidence 
of  the  debt ;  that  question  exercised  the  judgments  of  the 
ablest  men  of  that  time  ;  but  the  authority  which  his  opinion 
had  in  Westminster  Hall  made  others  yield  to  him,  and  it 
was  thought  necessary  to  resort  to  the  legislature  to  apply  a 
remedy." 

It  gives  me  pleasure  here  to  take  notice  that  this  question 
has  been  most  ably  examined  in  the  appendix  to  1  Cranch; 
and  the  error  of  Holt,   and   his  pertinacity  abundantly  ex- 


56  Law  Miscelia»ieb. 

posed  by  an  American  writer,  which  to  me  appears  valuable, 
in  that  it  is  doing  something  towards  our  emancipation  from 
the  too  great  authority  of  what  a  lord  may  have  said. 

In  4  T.  R.  512,  lord  Kenyon  states,  "  That  it  is  incum- 
bent on  a  party  who  wishes  to  establish  a  point  contrary  to 
nil  justice  and  equity^  to  produce  some  direct  authority  shew- 
ing that  there  is  an  inflexible  rule  of  law  established  in  oppo- 
sition to  justice."  This  by  implication  admits  that  rules  of 
law  may  be  established  by  decisions  contrary  to  all  justice 
and  equity.  On  another  occasion,  he  uses  words  which 
throw  a  light  on  the  subject  of  decisions.  "  If  this  question," 
says  he,  '■'■  zvere  at  rest,  either  by  reason  of  decided  cases, 
or  by  the  general  opinion  of  Wc  stminster  Hall,  I  should  not 
be  inclined  to  disturb  it  now.  But  I  perfectly  well  remem- 
ber that  when  the  Taunton  case  was  argued,  so  far  from  the 
profession  acquiescing  in  what  was  thrown  out  by  the  three 
judges  immediately  after  the  argument,  great  doubts  were 
entertained  about  it." 

And  5  T.  R.  556,  "  The  cases  cited  from  Ventris,  ought 
not  to  be  treated  lightly,  or  overturned  without  great  consi- 
deration, because  it  has  the  sanction  of  lord  Hale's  name. 
But  as  at  present  advised,  I  confess  it  appears  to  me  that  the 
reasons  given  in  support  of  that  judgment  are  strong  t» 
shew  that  the  decisions  ought  to  have  been  the  other  xvay" 

In  5  T.  R.  682,  he  says,  "  I  do  not  think  that  the  courts 
ought  to  change  the  case,  so  as  to  adapt  it  to  the  fashion  of 
the  times ;  if  an  alteration  in  the  law  be  necessary,  recourse 
must  be  had  to  the  legislature  for  it.""  But  in  contrast  with 
this  dictum  of  lord  Kenyon,  I  give  the  bold  sentiments 
of  the  canonist  Gomery,  which  I  find  quoted  and  approved 
by  some  chancery  writers  ;  "  Non  est  inconveniens  judicium 
esse  uno  tempore  justum,  et  postea  ejus  eontrarius  justius. 
Opiniones  secundum  varietatem  temporum  senescant  et  in- 
termoriantur,  alioque  diverse  renascuntur  et  deinde  pubes- 
cant."  This  I  take  to  be  found  in  the  nature  of  things ; 
and  though  the  principles  of  justice  are  always  the  same,  yet 
the  application  of  general  rules,  even  in  the  like  case,  may 
from  extrinsic  circumstances  become  unequal  and  unjust. 


Law  Miscellanies*  57 

And  this  is  one  great  advantage  of  a  jury  trial,  where  the 
heart  can  feel  the  right  which  the  head  is  at  a  loss  to  ascer- 
tain J  and  hence  a  consideration  which  ought  to  have  a  pow- 
erful effect  in  governing  the  discretion  of  a  court  in  grant- 
ing new  trials,  certain  it  is  that  even  where  a  judge  lays 
down  the  law,  speaking  of  decisions,  it  ought  to  be  sparing- 
ly said,  we  are  bound  bi/  it*  For  though  even  a  series  of  de- 
cisions may  amount  to  a  moral  certainty  of  truth  and  reason, 
it  is  not  conclusive  ;  and  in  contemplation  of  law,  any  judge 
is  supposed  to  examine  a  principle  when  he  sanctions  it, 
and  if  the  decision  is  contrary  to  his  own  reason,  he  has  a 
right  to  depart  from  it,  and  it  can  only  be  considerations  of 
expediency  that  can  hinder  it.  For  in  the  language  of  lord 
Chancellor  Finch,  in  the  case  of  the  Duke  of  Norfolk,  "  I 
must  be  saved  by  my  own  faith,  and  not  another's  ;  and  must 
not  decree  against  my  own  conscience  and  reason."  Every 
man  is  supposed  to  use  his  own  reason  when  he  judges  ;  and 
to  be  assisted  only  by  that  of  others^  who  have  gone  before 
him. 

The  respect  shewn  to  the  sentiments  of  the  jury  by  Lord 
Kenyon,  appears  from  1  T.  R.  153,  "  I  confess,  says  he,  that 
the  impression  I  received  at  the  trial,  was  unfavourable  to 
the  defendant;  but  the  jury  thought  differently^  and  I  see  no 
reason  upon  mature  deliberation  to  differ  from  the  conclusion 
they  have  drazvn.^^ 

Lord  Mansfield,  1  Bur.  419,  observes,  "  When  solemn 
determinations  acquiesced  under  had  settled  precise  cases, 
and  became  a  rule  of  property,  they  ought  for  the  sake  of  pro- 
perty to  be  observed,  as  if  they  had  originally  made  a  part 
of  the  text  of  the  statute."  Yet  in  tracing  his  decisions  it 
is  impossible  not  to  observe,  that  he  is  but  little  embarrassed 
with  the  old  cases  where  they  come  in  contact  Av^ith  his  own 
reason.  He  has  a  felicity  in  getting  over  them  and  that  is 
in  most  cases  not  by  directly  overruling,  but  by  neglecting 
them  though  pressed  in  the  arguments  of  counsel,  and  taking 
notice  only  of  those  that  make  for  the  opinion  he  has  him- 
self formed  on  principles  of  reason ;  or  if  he  does  take  no- 
tice of  them  it  is  to  give  them  the  go^by  with  a  "this  is  dis- 

H 


SS  Law  Miscellanies. 

tinguishable."  In  some  instances  indeed  he  does  not  hesi- 
tate to  speak  with  contempt  of  a  case,  as  3  Bur.  1281,  "  the 
case  in  the  exchequer  cannot  be  rightly  represented  to  us  j  for, 
as  it  is  represented,  one  of  the  two  resolutions,  viz.  that  upon 
the  statute  of  limitations,  is  wrong  to  the  last  degree,  and 
obviously  so  to  every  body.*' 

In  developing  principles,  the  mind  of  this  judge,  often 
pours  a  stream  of  light  which  puts  out  cases,  or  renders 
them  necessary  as  on  the  ejectment  trial,  3  Bur.  1291,  or  in 
14:.' 3,  on  a  point  of  pleading ;  or  respecting  the  will  of  a  joint 
tenant ;  1498,  or  in  that  of  Curret  v.  Vaugh,  as  to  the  bear- 
er of  a  bill  of  exchange  maintaining  an  action  against  the 
drawer  where  he  grants  a  new  trial  contrary  to  his  own  direc- 
tion at  nisi  prius,  misled  as  he  alleges  by  cases ;  and  though 
strongly  struck  at  the  time,  that  upon  general  principles  the 
bearing  of  them  was  against  law  and  justice.  He  did  not 
always  take  up  water  at  the  stream's  mouth,  but  went  to  the 
source  j  the  "  antiquos  exquirere  fontes,"  would  be  a  good 
motto  for  a  sergeant's  ring,  though  I  have  not  seen  it  men- 
tioned as  used. 

Another  occurs  to  me  from  the  poet  Horace,  which  would 
be  a  good  motto,  and  expresses  a  principle  which  governs 
too  little, 

■■  '  ■ Sensus,  moresque  repugnant, 

Atqui  ipsa  utilitas,  juste,  prope  mater  et  aequi. 
It  would  be  too  much  to  say  of  the  judiciary. 


■  raro  sensus  communis  in  illis ; 


and  yet  mother  wit  seems  to  me  to  shew  itself  less  than 
might  be  expected  in  a  science  which  contains  the  rules  of 
right  and  wrong  in  the  transactions  of  men. 

In  1  Bos.  &  P.  N.  S.  69,  Sir  James  Mansfield  says,  "  I 
do  not  know  how  to  distinguish  this  from  the  case  before 
decided  in  this  court."  It  is  of  greater  consequence  that  the 
law  should  be  as  uniform  as  possible  than  that  the  equitable 
claims  of  aji  individual  should  be  attended  to.  The  idea 
that  the  equity  of  a  particular  case  must  be  lost,  for  the 
sake  of  a  general  rule,  is  not  always  satisfactory,  or  that  a 
general  rule  ought  not  to  be  changed  though  it  is  found  to 


Law  Misckllanies.  59 

work  iniquity;  notwithstanding  there  is  the  same  power  in 
the  court  to  change  it,  that  there  was  originally  to  make  it. 
For  it  is  said  1  Bos.  and  Pul.  207,  N.  S.  by  the  same 
judge,  that  "  certainly  of  late  years  the  courts  have  been  in- 
clined to  relax  the  strictness  of  the  old  rules  respecting 
proofs  which  were  thought  to  be  attended  with  great  ex- 
pense and  difficulty." 

In  the  case  of  Wright  v.  Child,  this  chief  justice  disco- 
vers an  independence  of  mind  which  might  seem  to  militate 
with  the  doctrine  of  technical  construction  of  devises  in  op- 
position to  the  popular  meaning  of  the  words  j  and  though 
he  concedes  to  the  weight  of  authority  against  him,  yet  ac- 
knowledges it  to  be,  at  least  in  that  case,  against  his  own 
judgment.  "  This  case  says  he,  has  been  long  depending, 
not  so  much  on  account  of  any  doubts  entertained  by  my 
brothers,  as  by  myself;  the  rest  of  the  court  being  of  opi- 
nion, that  the  defendant  is  entitled  to  judgment.  And  there- 
fore I  now  defer  to  the  opinion  of  my  brothers  and  of  the 
Judges  of  the  court  of  king's  bench,  yet,  I  must  declare  that 
if  it  had  fallen  to  my  lot  only,  to  decide  the  case,  I  should 
have  decided  it  in  favour  of  the  lessor  of  the  plaintiff.  / 
am  hound  to  say  that  this  is  still  my  opinion.  In  all  the  ca- 
ses where  questions  of  this  sort  have  arisen,  it  has  been  next 
to  impossible,  out  of  a  court  of  justice  to  doubt  of  the  testa* 
tor's  intention'^"* 

In  3  Bos.  and  Pull.  124,  the  ease  of  Atkin  v.  Berwick 
is  relied  upon  in  the  argument,  and  of  which  lord  Alvanly 
observes ;  "  It  is  singular  that  this  case  should  have  been 
often  cited  with  disapprobation,  and  never  overturned  ;  but 
that  different  judges  should  have  supposed  it  proceeded  up- 
on different  grounds."  Brook  justice,  speaks  of  it  as  '*  at  dif- 
ferent times  confirmed,"  and  Chambre  says  ''  perhaps  if  a 
case  precisely  similar  to  that  were  now  to  arise,  it  would 
not  receive  the  same  decision.  It  might  be  difficult  now 
to  support  the  case,  as  it  was  then  decided,  and  it  is  remark- 
able that  where  this  case  has  been  mentioned  upon  v:trious 
occasions,  it  has  been  constantly  found  fault  with,  and  yet 
the  judges  have  never  particularly  stated  the  parts  with  which 


60  Law  Miscellanies. 

they  quarreled,  but  have  always  confirmed  the  case  upon 
the  whole,  and  held  on  the  decision  to  have  been  right."  It 
may  be  seen  from  th'is^  the  disposition  of  men^s  minds^to  be  eii' 
slaved  to  rvhat  is  gone  before:  In  the  gross,  to  feel  a  thing 
wrong;  but  to  think  it  a  trespass  upon  the  sacredness  of 
precedent,  to  undertake  the  examination,  and  to  declare  it 
so. 

3  Bos.  and  Pul.  245,  Justice  Heath  observes  that  "  with 
respect  to  the  case  cited  from  Barnes,  (Read,  v.  Garnet,)  that 
has  been  overruled  by  subsequent  authorities  and  practice ; 
indeed  many  of  the  cases  reported  in  that  book  are  not  law;'' 
and  Brooke  justice,  "the  reason  upon  which  the  decision 
in  Read  v.  Garnet  is  founded,  proves  it  to  be  a  case  of  no 
authority,"  and  in  an  excellent  note  by  the  reporter  in  the 
case  of  Wennal  v.  Adney,  the  words  are  that  the  opinion 
of  justice  Buller  in  the  last  case  (Hawkes  v.  Saunders)  was 
to  the  same  effect,  and  the  same  law  was  again  laid  down  by 
Lord  Mansfield  in  Freeman  v.  Trenton.  Of  the  two  for- 
mer cases,  it  may  be  observed  that  the  particular  point  de- 
cided in  them  has  been  overruled  by  the  subsequent  case  of 
Deeks  v.  Strut,  5  T.  R.  690.  This  shews  that  the  judges 
will  test  a  decision  by  the  reason  of  it,  and  overrule  what  has 
been  ruled  before. 

Referring  to  cases,  3  Bos.  and  Pul.  Chambre,  J,  says ; 
"  the  language  of  those  cases  does  not  appear  to  me  very 
correct,"  and  again,  "  before  we  get  rid  of  these  authorities, 
we  must  be  furnished  with  some  principle  of  law,  upon 
which  we  may  decide  contrary  to  them."  This  implies  the 
exercise  of  his  own  reason  in  this  judge,  and  the  right  to 
develope  principle,  independent  of  what  are  called  authori- 
ties. That  a  decision  not  founded  in  reason  but  contrary  to 
justice,  Vt^ill  take  place,  we  have  an  instance  in  the  case  of 
goods  coming  into  the  hands  of  a  bankrupt  after  his  bank- 
ruptcy. The  assigns  shall  take  them  and  yet  the  creditor 
shall  not  be  allowed  to  prove  the  debt  under  the  commis- 
sion. The  judges  of  the  court  of  common  pleas  meeting 
with  this  principle,  3  Bos.  and  Pul.  in  the  decision  express 
themselves  tlius  ;  the  chief  J.  (Alvanly)  "  in  looking  into  the 


[ 


Law  Miscellanies.  61 

cases  I  find  the  question  to  be  completely  closed  in  West- 
minister Hall  J  and  that  we  therefore  are  bound  to  hold  that 
though  a  bankrupt  has  altogether  ceased  to  be  a  trader ;  yet 
that  his  warehouse  continues  open  for  the  purpose  of  re- 
ceiving goods ;  and  that  the  assigns  have  a  right  to  take 
possession  of  every  thing  that  comes  into  their  hands  with- 
out paying  a  single  farthing  even  though  the  consigns  of  the 
goods  are  not  entitled  to  come  in  under  the  commission." 
And  Heath,  J.  "  It  is  much  to  be  lamented  that  the  goods 
consigned  to  a  bankrupt  which  arrive  after  the  act  of  bank- 
ruptcy as  in  this  case,  should  even  be  considered  as  part  of 
the  bankrupt's  effects.  The  hardships  to  which  this  rule  of 
law  had  given  rise,  was  the  occasion  of  introducing  the  doc- 
trine of  stoppage  in  transitu." 

Brooks,  J.  *'  I  exceedingly  regret  that  such  a  rule  of  law 
should  have  been  adopted ;  for  it  appears  to  me  to  be  pro- 
ductive of  very  great  hardships.  But  the  cases  are  too  de- 
cisive upon  the  subject  for  the  court  now  to  adopt  a  contrary 
doctrine."  Chambre,  J.  "  I  am  entirely  of  the  same  opi- 
nion." What  would  have  hindered  them  in  a  conference 
among  themselves,  say  the  twelve  judges,  to  come  to  an  un- 
derstanding on  the  subject,  and  determine  that  as  to  all  ca- 
ses subsequently  arising ;  a  contrary  doctrine  should  pre- 
vail ?  This  is  not  a  case  where  it  stands  indifferent  how  the 
rule  shall  be ;  and  the  desideratum  only  can  be,  that  it  be 
settled.  A  rent  in  the  wall  cannot  more  mar  the  beauty  of 
an  edifice,  than  what  is  unreasonable,  the  consistency  of 
a  moral  science.  For  the  law  is  not  altogether  a  system 
of  arbitrary  rules,  like  those  of  a  game  at  cards,  or  of  chess. 
It  depends  upon  the  subject  of  the  rules  whether  they  may 
be  arbitrarily  fixed ;  or  exist  antecedently  in  the  nature  of 
relations.  All  rules  of  practice,  or  which  respect  the  modus 
ct  forma  of  pursuing,  or  defending  rights,  are  of  an  arbi- 
trary nature,  as,  "  if  goods  be  bought  to  be  paid  for  by  a  bill 
at  two  months,  and  after  the  goods  are  delivered  the  bill  is 
refused  to  be  given,  shall  the  vender  sue  for  the  bills,  or  the 
price  of  the  goods  ?"  In  Mussen  v.  Price,  4  East,  147,  the 
chief  J.  of  the  king's  bench;  and  in  Dutton  v.  Solomonson, 


4iSi  Law  Miscellanies. 

3  Bos.  and  P.  584,  the  chief  J.  of  the  common  pleas 
thought  that  he  might  sue  for  either;  but  the  law  being 
once  settled  no  material  inconvenience  could  result. 

In  Andrew  v.  Hutton,  the  chief  J.  of  the  common  pleas, 
speaking  of  the  case  of  Jeffreson  v.  Morton,  says,  "  I  cannot 
help  thinking,  with  deference  to  the  very  learned  judges  by 
whom  the  case  was  decided,  that  if  the  matter  had  been 
more  fully  discussed  it  would  have  been  differently  deterwiited. 
They  would  seem  to  have  taken  up  the  case  in  a  wrong  point 
of  view,  and  I  feel  myself  compelled  to  deny  the  authority 
of  that  case."   3  Bos.  and  Pul.  652.     Nor  is  it  only  a  rule  of 
practice^  but   a  principle  oj"  law  that  decisions  will   change. 
In  a  note  to  3  Bos.  and  Pul.  654,  we  have  a  note   of  the 
words  of  lord  Mansfield  in  a  case  before  the  court.     "  On 
the  introduction  of  the  statute  of  uses,  there  arose  great  dread 
of  letting  in  perpetuities,  by  means  of  the  extensive  op<  ration 
of  that  statute,  and  in  the  time  of  Eliz.  and  James,  many  ca- 
ses were  decided  with  a  view  to  prevent  that  effect ;  with 
this  view  it  was  allowed  to  bar  contingent  remainders  j  be- 
fore the  person  who  was  to  take  came   into  esse  ;  others 
were  held  to  be  too  remote  in  their  creation.     The   cases 
proceeded  in  that  view  too  far,  and  estates  were  too  much 
loosened,  and  it  became  necessary  to  restrain  them   again ; 
and  in  the  time  of  the  troubles,  eminent  lawyers,  who  were 
then  chamber  counsel,  devised  methods,  which  on  their  re- 
turn to  Westminster  Hall,  they  put  in  practice ;  such  as   in- 
terposing trustees  to  preserve  contingent  remainders.     It  is 
not  of  long  date  that  the  rules  now  in  use  have  been  establish" 
ed.     I   remember  the  introduction  of  the   rule  which  pre- 
scribes the  time  in  which  executory  devises  must  take  effect, 
to  be  life  or  lives  in  being,  and  21  years  afterwards." 

A  principle  oftentimes  comes  to  be  varied  from  what  it 
originally  was,  by  application  of  it,  and  acquires  an  extent 
beyond  its  first  dimensions.  As  said  by  lord  Elden,  2  Bos. 
and  Pul.  24,  "  With  respect  to  the  cases  which  have  been 
cited,  it  is  to  be  observed,  that  when  a  general  principle  for 
the  construction  of  an  instrument  is  once  laid  down,  the 
CQurt  wiU  not  be  restrained  from  making  their  own  applica- 


Law  Miscellanies.  63 

tion  of  that  principle,  because  there  are  cases  in  xuhich  it  may 
have  been  appliedin  a  different  manner.  The  principle  being 
once  acknowledged,  the  only  difficulty  consists  in  making 
the  most  accurate  application  of  it."  Why  is  a  decision  cited 
but  because  the  case  decided  is  the  same  with  that  to  be  de- 
cided? But  unless  the  case  is  precisely  the  same,  the  analo- 
gy is  imperfect,  and  the  application  erroneous.  Hence  the 
exercise  of  judgment  is  as  necessary  as  the  recollection  of 
precedent. 

"  The  rule  of  stare  decisis,  Is  as  justly  applicable  to  pri- 
vate parties,  as  it  is  to  general  principles,  where  the  decision 
ean  be  reasonably  ascertained  and  supported^'*  2  Bos.  and  P* 
191,  and  298.  The  case  is  clear  says  justice  Chambre,  both 
on  reason  and  authorities.  This  marks  the  distinction  and 
implies  a  difference,  and  that  authority  is  not  always  reason. 
And  in  403,  the  same  judge  in  another  case,  says,  "  I  stand 
single  in  my  opinion  here,  and  opposed  by  a  determination 
of  the  court  of  exchequer  ;  and  that  strengthened  by  a  deter- 
mination of  lord  Loughborough,  at  nisi  prius,  confirmed 
in  this  court.  I  am  sensible  of  the  weight  of  these  autho- 
rities, but  I  feel  myself  under  the  .necessity  of  enquiring  in- 
to the  foundation  of  those  decisions.  I  feel  the  weight  of 
authority  against  the  opinion  I  am  delivering,  and  I  am  fully 
aware  of  the  propriety  of  adhering  to  former  decisions,  and 
the  mischief  of  lightly  departing  from  them ;  but,  as  cer- 
tainty is  the  chief  reason  for  submitting  to  authority,  such 
determinations  as  are  not  perfectly  satisfactory  in  respect  of 
the  arguments  on  which  they  were  founded,  cannot  contri- 
bute to  certainty,  which  will  be  better  attained  by  going 
back  to  reason  than  by  following  the  determinations." 

In  2  H.  Blackstone,  450,  BuUer  J.  refers  to  it  as  a  thing 
frequently  said  in  courts,  "  the  nonsense  of  one  man  cannot 
be  a  guide  for  another,"  which  would  seem  to  imply  a  right 
in  all  men  that  judge,  to  examine  what  is  said,  and  deter- 
mine whether  nonsense  or  not,  before  they  follow  it.  I  take 
it  to  be  the  privilege,  and  what  is  more,  the  duty  of  every 
judge  to  examine  for  himself;  and  to  steer  between  the  cha- 
rybdis  of  unreasonable  decision  on  the  one  hand,  and  th6 


64  Law  Miscellanies. 

scylla  of  uncertainty  on  the  other,  as  in  his  discretion  shall 
seem  practicable,  in  the  administration  of  justice.  These 
observations  can  have  no  relation  to  matters  not  founded 
on  the  construction  of  a  statute ;  or  on  moral  reason,  but 
on  abstract  practice,  and  arbitrary  rule,  for  which  there 
is  no  reason  but  what  is  artificial,  and  the  sic  jubeo  of  de- 
cisions, where  it  is  the  regulation;  or  the  adjudication  of 
the  courts  that  makes  the  rule,  and  is  not  the  mere  evi- 
dence of  it,  and  supposes  the  prior  existence  of  principle. 
Nor  do  I  mean  to  insinuate  that  there  are  those  who  ex- 
clude wholly  the  canvassing  the  reason  of  a  precedent ;  but 
that  I  would  allow  myself  the  questioning  the  reason  of  a 
precedent,  as  well  as  the  application.  Where  one  is  shock- 
ed by  a  decision,  there  is  some  presumption  against  it,  and 
if  traced  it  may  be  found  to  be  an  error,  and  the  time 
ruhen,  and  the  place  ascertained  where  it  bred. 

With  respect  to  our  own  courts  in  this  country  to  whick 
I  bring  my  observations  it  would  seem  to  me  that  we  have 
been  in  the  habit  of  paying  more  deference  to  English  de- 
cisions than  the  most  technical  of  the  English  judges  them- 
selves. They  do  sometimes  by  overhauling  and  distinguish- 
ing, make  out  to  get  clear  of  a  case  that  seems  to  sanction 
what  is  unreasonable ;  but  I  do  not  know  where  that  has  been 
done  in  ©ur  courts.  Be  that  as  it  may,  I  am  not  prepared 
to  subscribe  to  our  own  decisions  in  all  cases  as  conclusive 
authority.  When  we  review  the  judicial  history  of  this 
state,  we  shall  find  the  constitution  of  the  courts  to  have 
been  such  that  for  a  length  of  time  a  decision  could  be  con- 
sidered as  little  more  than  the  opinion  of  a  single  mind. 
Before  the  revolution,  until  the  time  of  chief  J.  Chew,  there 
was  no  great  legal  character  on  the  bench  of  the  supreme 
court ;  and  after  the  revolution  for  a  long  time  there  was  but 
one  that  had  been  bred  a  lawyer.  W^hen  abler  associates 
came  upon  the  bench  of  this  court,  consisting  still  but  of 
four  judges,  and  two  of  them  holding  the  nisi  prius  courts, 
the  opinions  given  at  nisi  prius  could  be  given  but  by  two, 
and  what  use  in  bringing  the  matter  before  another  two  in 
bank,  who  being  but  of  equal  number  could  not  be  supposed 


Law  Miscellanies.  ^ 

to  listen  readily  to  reverse  what  had  been  sanctioned.  Be- 
sides the  julges  sitting  in  bank  at  an  extremity  of  the  state, 
rendered  it  impracticable  in  most  cases^  for  suitors  to  sustain 
the  expense  of  an  appeal;  and  for  this  and  other  reasons, 
we  all  know  that  the  court  of  errors  and  appeals  sitting  at 
the  same  place,  was  to  the  midland  and  more  especially  to 
the  western  country  but  a  name.  I  do  not  think,  there- 
fore, that  so  much  weight  ought  to  be  attached  to  deci- 
sions in  this  state  ;  or  that  the  not  appealing  should  be  con- 
sidered as  an  acquiescence  in  the  reason  of  them.  On  a 
principle  of  tenure  of  real  property  where  an  original,  and 
not  a  derivative  title  comes  in  question,  it  must  be  with 
great  repugnance  I  can  submit  to  a  decision  to  which  my 
judgment  was  opposed  when  at  the  bar,  and  which  I  can- 
not consider  as  having  received  the  investigation  ot  such  a 
number  of  minds  legally  informed,  so  as  to  give  satisfaction. 
I  mast  acknowledge  that  I  do  not  consider  the  principles  of 
construction  so  far  settled  as  to  preclude  examination.  This 
I  say  as  not  undervaluing  the  juJg'nent  of  others,  but  as 
accounting  for  that  freedom  of  chinking  which  I  may  indulge 
in  some  cases,  and  which  is  not  founded  as  may  be  sup- 
posed in  the  vain  ambition  of  being  singular,  or  of  being 
thought  pre-eminent;  bat  in  the  love  of  liberty,  and  repug- 
nance to  submission  to  what  does  not  appear  to  me  to  be 
founded  on  reason,  general  convenience,  or  justice  to  indi- 
viduals. I  will  admit  that  much  has  been  done  towards 
buildmg  a  system  of  jurisprudence  in  the  state,  but  I  am 
unwilling  to  apply  the  maxim  of  stare  decisis  to  all  that  has 
been  done. 

Uider  the  head  of  Judicial  opinion  or  determination,  15 
Vin.  1.  it  is  said  the  decisions  of  courts  are  the  conser- 
vatives and  evidences  of  laws.  Or  they  are  such  as  by  way 
of  deduction  and  dilation  upon  laws, are  formed  or  deduced; 
or  they  are  such  as  seem  to  have  no  other  guide  but  the  com- 
mon reason  of  the  thing,  unless  the  same  point  has  jseen  for- 
merly decided,  as  in  the  exposition  of  the  intention  of  clauses 
in  deeds,  wills,  covenants,  &c.  where  the  very  sense  of 
the    v/ord,  and    their    positions    and   relations  give    a    ra- 

,1 


^6  I.Aw  Miscellanies. 

tional  account  of  th*.-  meaning  of  the  parties,  and  in  suck 
cases  a  judge  does  much  better  herein,  than  what  a  bare 
grave  grammarian  and  logician,  or  other  prudent  men  could 
do ;  for  in  many  cases,  there  have  been  former  resolutions 
either  in  point,  or  agreeing  in  reason  or  analogy  with  the 
ease  in  question  ;  or  perhaps  also,  the  clause  to  be  expound- 
ed' is  mingled  with  some  terms  or.  clauses  that  require  a 
knowledge  of  the  law  to  help  out  with  the  construction  or 
exposition  ;  both  which  do  often  happen  in  the  same  case 
and  cherelore  it  requires  a  knowledge  of  the  law  to  render 
and  expound  such  clauses  and  sentences;  and  doubtless  a 
good  common  lawyer  is  the  best  expositor  of  such  clauses. 

1  recur  to  observe  a  little  on  the  act  of  assembly  of  the 
IQch  March,  1810  :  "  It  shall  not  be  lawful  to  reader  quote 
any  British  precedent  or  adjudication,  '  &c.  This  injunction 
or  prohibition  has  been  complied  with  by  the  courts,  though 
I  can  have  no  doubt  that  it  was  under  a  misconception  of 
the  legislature,  as  to  the  authority  of  British  precedents, 
or  adjudications,  that  they  judged  it  expedient  to  enact  such 
a  law  ;  and  as  to  that  obligation  under  which  the  courts 
were  supposed  to  consider  themselves  bound  to  respect  such 
precedents  or  decisions.  Hence  it  is  that  the  courts  have 
been  forced  to  do  that  indirectly  which  they  could  not  do 
directly  j  and  to  suffer  such  adjudications  to  be  read  and 
quoted  through  the  medium  of  the  reports  of  other  states, 
which,  of  necessity,  must  increase  the  lawyer's  library  ;  so 
that  in  respect  of  time  taken  up  in  reading  authorities,  there 
is  nothing  gained  ;  and  this,  I  take  it,  was  one  object  in  pre- 
cluding such  reading  and  quotation.  But  I  have  viewed 
this  matter  in  the  light  of  a  more  extensive  conseqiience. 
It  is  interfering  with  judicial  rights.  Shall  not  a  judge  have 
the  privilege  of  informing  himself  from  all  sources  of  know- 
ledge ?  It  may  be  said  there  is  nothing  in  this  act  to  hinder 
him  from  informing  himself  in  his  chamber  and  by  private 
reading.  But  it  is  in  the  way  of  the  privilege  of  a  party  to  urge 
that  information  upon  his  mind,  when,  in  the  opinion  of  the 
party  or  his  counsel,  an  advantage  may  be  thought  to  be  de- 
rived from  it.     The  legislature  would  start  at  the  idea  of 


Law  Miscellanies.  6f 

precluding  the  reading  the  holy  scriptures,  the  principles 
and  reasons  of  which,  may,  in  many  cases,  be  applicablt  as 
grounds  of  natural  justice.  For  the  lavv  of  God  is  a  ground 
of  the  com.non  law.  Taey  would  equally  revolt  at  the  idea 
of  precluding  the  sentiments  of  moral  writers  on  any  subject, 
even  though  these  were  British.  The  truth  is  they  have  no 
right  to  interfere  with  the  mind  of  the  judge,  as  to  what  he 
shall  read,  or  suffer  to  be  read  to  him.  But  more  especial- 
ly hire,  where  the  very  substratum  of  his  judgment  in  many- 
cases,  must  be  the  comments  that  are  made  on  the  commoti 
lav ;  and  what  can  the  distinction  be,  whether  these  com- 
ments are  made  by  men  who  have  lived,  or  by  men  now  liv- 
ing, if  thev  appear  to  carry  reason  and  truth  ? 

"  Knowledge  at  one  entrance  quite  shut  out." 

Can  this  be  considered  in  any  other  light,  than  that  of 
trenching  on  the  right  of  judgment  j  and  narrov/ing  the  pro- 
vince of  investigation .'  I  feel  the  more  for  it,  because  it  is 
an  imputation  upon  the  good  sense  of  the  state,  and  a  re- 
proach with  the  jurisconsults,  and  men  of  science  of  other 
nations.  "  Prove  all  things  and  hold  fast  that  which  is  best," 
is  an  injunction  of  the  scripture  ;  and  why  not  hear  all  things, 
which  is  the  means  of  attaining  just  ideas  on  a  subject  dis- 
cussed. The  judiciary  is  a  co-ordinate  branch  of  the  govv-rn- 
ment ;  and  which,  if)  it  is  trusted  with  saying  what  the  law  is, 
may  it  not  be  left  to  its  discretion  to  hear  all  reasoning  on 
the  ground  of  law,  let  it  come  from  whatever  quarter  they 
may  be  willing  to  admit  it  ? 

A  good  deal  has  been  said  on  the  power  of  courts  to  judge 
on  the  constitutionality  of  a  law.     It  would  seem  !iy  the  rea- 
soning of   some  to   be  thought  a  self  evident   proposition ; 
while  others  considered  it  extremely  difficult  even  in  theory 
to  decide  upon  the  question.     But  certain  it  is   that  if  re- 
duced to    practice  it  must  be  a  plain   and  broad  case    that 
will  justify  the   interference,  or  render   it  safe  to  make  the 
experiment.     An  omnipotent    legislature    will  not    readily 
yield  to  any  thing  but  that  which  will  carry  the  sense  of  the 
community  with  it ;  and  this  must  be  a  transgression  of  the 
constitution  extremely  obvious  indeed.     A  transgression  may 


68  Law  Miscellanies. 

be  plain  and  obvious  from  the  nature  and  the  magnitude  of 
it.  .  The  British  statute  declaring  the  power  to  bind  "•  the 
colonies  in  all  cases  whatsoever,"  was  of  a  nature  that  jus- 
tified resistance  in  the  very  first  exertion  of  that  power, 
from  the  principle  which  it  contained.  The  very  first  at- 
tempt to  exercise  such  a  power,  was  resisted  and  gave 
rise  to  the  war  of  the  revolution.  The  power  which  the 
same  government  assumes  in  taking  from  American  vessels, 
seamen  naturalized  in  these  states,  and  compelling  them  to 
serve  as  British  subjects,  because  they  have  been  once  such, 
has  been  a  cause  of  the  present  war ;  one  cause  at  least  j 
and  seems  to  be  the  principal  ground  on  which  it  is  at  this 
time  continued.  This  claim  is  of  such  a  nature  that  the 
principiis  obsta,  must  apply,  if  it  is  at  all  to  be  resisted. 
For  it  is  not  the  number  of  American  seamen  impressed, 
but  the  right  of  such  impressment,  or  takings  that  is  to  be 
determined. 

To  give  an  example  on  the  other  hand,  of  acts  which, 
not  from  the  principle^  but  from  the  excess  and  magmtudey 
become  questionable,  we  may  refer  to  the  state  laws  increas- 
ing the  jurisdiction  of  the  justices  of  the  peace  j  or  abridg- 
ing the  province  of  jury  trial  by  extending  that  of  arbitra- 
tors ;  or  taking  away  appeals  from  these,  unless  above  a  cer- 
tain sum.  No  one  will  say,  but  that  if  all  jurisdiction  were 
given  to  the  justices,  or  all  to  arbitrators,  without  appeal, 
and  by  this  means  the  trial  by  jury  indirectly  abolished,  it 
would  be  an  invasion  of  the  constitution ;  but,  inasmuch  as 
it  cannot  be  considered  an  infringement  of  the  constitution 
to  give  the  justices  some  jurisdiction,  for  they  had  it  under 
former  constitutions,  and  it  has  not  been  taken  away  by  the 
present,  it  will  be  impossible  to  say,  at  what  point,  the  le- 
gislature ought  to  stop  ,-  and  if  undertaken  to  be  said  by  the 
courts,  it  must  be  at  some  point  of  great  excess  that  such 
a  stand  can  be  made. 

Will  not  the  act  of  our  legislature  taking  from  the  courts 
the  right  of  hearing  any  reading  or  quotation,  involve  the 
principle,  that  this  may  interfere  to  any  extent;  and  is  it 
not  in  the  principle  itself  so  obvious  as  to  forbid  a  submis* 


Law  Miscellanies.  69 

ston  ?  I  know  of  no  case  which  has  yet  occurred,  in  the 
jurisprudence  of  the  country,  that  is  equally  alarming  :  and 
I  have  no  doubt  that  if  the  courts  would  refuse  to  submit, 
the  good  sense  of  the  country  would  be  on  their  side,  and 
bring  about  a  repeal  of  the  law.  1  have  no  doubt  but  that 
even  the  legislature  which  enacted  the  law  would  repeal  it. 
For  it  was  owing  to  a  misunderstanding  of  the  fact  that 
British  precedents  or  adjudications,  since  the  4th  of  July 
'76  were  read  as  authorities ;  or  carry  any  more  weight  in 
th-  n  than  their  intrinsic  reason  and  good  sense  warranted. 
There  was  a  reflection  upon  the  courts  to  suppose  it  possi- 
ble that  the  reading  or  quotation  of  these  could  carry  more. 
Bat  the  truth  is,  what  led  to  it  in  some  degree,  was  an  ap- 
pearance of  this,  and  an  overweening  attachment  which  some 
judges  seemed  to  discover  to  British  decisions  even  of  an  ul- 
terior date.  But  it  was  an  evil  that  would  wear  off  in  due 
time  ;  but  the  remedy  was  worse  than  the  mischief;  the  un- 
dertaking to  restrain  or  abridge  that  information  from  all 
sources  ;  and  without  which  they  can  be  neither  liberal  nor 
informed.  The  only  means  to  prevent  narrowness  and  to 
give  liberality,  is  to  let  all  be  heard. 

I  have  said  that  another  cause  of  the  act  of  the  legisla- 
ture, or  what  led  to  it,  was  what  had  been  seen  and  felt  by 
the  country,  in  taking  up  the  time  of  the  court  with  so  much 
reading  and  quotation  ;  and  it  was  thought  that  if  the  pro- 
vince of  reading  was  abridged,  there  would  be  less.  But  if 
the  later  and  more  modern  determinations  are  not  read, 
their  place  will  be  filled  up  from  the  old,  which  are  with- 
out the  corrections  that  time  nuist  be  supposed  to  give  in 
the  growing  wisdom  of  one  age  above  another ;  and  the 
adaptation  to  the  increase  of  liberty  and  commerce;  and 
even  if  there  were  fewer  books  to  be  read  and  quoted,  it  will 
not  hinder  to  speak  as  much.  For  as  long  a  sermon  may 
be  made  upon  a  single  verse  as  upon  a  whole  chapter. 

I  had  been  disposed  to  construe  quoting  in  the  act  to 
respect  only  the  reading  a  quota  of  the  case  ;  or  what  ap- 
plied to  the  point;  or,  to  narrow  this  still  mor'^,  bv  taking 
it  to  mean  a  referring  to  the  case  merely ;    and  this  is  what, 


70  Law  Miscellakies. 

had  I  my  will,  I  would  allow  counsel  only  to  do,  as  to  any 
?idjudication,  unless  called  for  by  the  court.  But  I  dislike  a 
quibble;  and  therefore  lake  it  according  to  common  par- 
lance, and  suppose  it  to  mean  a  prohibition  of  making  a  rtf- 
ference  to  any  British  precedent  or  adjudication  ;  and  this 
I  consider  clearly  as  interfering  with  the  right  of  judgment 
in  a  judge;  because  it  abridges  his  means  of  information. 
But  drawing  out  the  consequence,  it  is  interfering  with  the 
right  of  suitors,  and  with  the  province  of  juries  and  arbitra- 
tors, who  have  a  right  to  hear  reason,  let  it  be  of  British  or 
civil  law,  or  other  origin.  Good  sense  and  reason  is  of  no 
country;  it  has  itsdomicil  in  all  regions,  and  deserves  to  be 
hospitably  received,  let  it  come  from  whence  it  will. 


ON  THE  AMENDMENT  OR  ALTERATION  OF 
LAWS. 

I  shall  begin  with  an  abstract  of  chief  justice  Hale^s 
observations,  "  touching  the  amendment  or  alteration  of 
laws." 

"  The  business  of  amendment  or  alteration  of  laws  is  a 
choice  and  tender  business,  neither  wholly  to  be  omitted^ 
when  the  necessity  requires,  and  yet  very  caut'iously  and 
tvarily  to  be  undertaken,  though  the  necessity  may,  or  at  least, 
may  seem  to  require  it. 

"  Here  we  see  there  are  two  extremes,  the  over-hastily 
mutation  of  laws  under  pretence  of  reformation ;  and  an 
over-strict  adherence,  in  every  particular  to  the  continuance 
of  the  laws  in  the  state  we  find  them,  though  the  reforma- 
tion of  them  be  never  so  necessary,  safe,  and  easy. 

"  Every  law  that  is  old  hath  this  advantage  over  any  new 
law,  in  that  it  is  better  knov/n  already  to  the  people  who  are 
concerned  in  it,  than  any  new  law  possibly  can  be,  without 
some  length  of  time  ;  by  means  whereof  it  must  needs  come  to 
pass,  that  though  a  nev/  law  be  possibly  as  good,  and  it 
may  be,  in  some  degree  better  than  the  old,  yet  many  great 


Law  Miscellanies^  71 

inconveniences  happen  in  that  interval  which  will  occur  be- 
tween the  promulgation  of  the  new  law  and  the  full  and 
perfect  knowledge  thereof,  in  those  who  are  concerned  in 
that  law.  And  if  there  were  no  other  advantage  of  the 
continuance  of  old  laws  above  the  introducing  of  new,  but 
this,  yet  it  should  make  people  very  shy  and  careful  in 
changes,  and  most  perfectly  to  demonstrate,  that  the  advan- 
tages of  the  change  would  be  ^so  great  that  it  would  prepon- 
derate this  very  single  consideration,  viz,  the  notoriety  of  the 
old,  and  the  novelty  of  the  new. 

"  It  is  most  certain,  that  time  and  long  experience  is  much 
more  ingenious^  subtile  and  judicious^  than  all  the  wisest  and 
acutest  wits  in  the  world  co-existing  can  be.  It  discovers  such 
a  variety  of  emergencies,  and  cases,  that  no  man  would  other- 
wise have  imagined ;  such  inconveniences  also.  And  on 
the  other  side,  in  every  thing  that  is  new,  or,  at  least  in 
most  things  relating  to  laws,  there  are  thousands  of  new  oc- 
currences, and  entanglements,  and  coincidences,  and  com- 
plications that  could  not  possibly  be  at  first  foreseen.  And 
the  reason  is  apparent,  because  laws  concern  such  multi- 
tudes, and  those  of  various  dispositions,  passions,  wits,  in- 
terests and  concerns,  that  it  is  not  possible  for  any  human 
foresight  to  discover  at  once,  or  to  provide  expedients 
against,  in  the  Jirst  constitution  of  a  laxv.  Now  a  law  that 
hath  abidden  the  test  of  time,  hath  met  with  most  of  these 
varieties  and  complications,  and  experience  hath  in  all  that 
process  of  time  discovered  these  complications  and  emergen- 
cies, and  so  has  applied  suitable  remedies,  and  cures.  So  that 
in  tru'.h,  ancient  laws  especially,  that  have  a  common  concern, 
are  not  the  issues  of  the  prudence  of  this,  or  that  councilor 
senate,  but,  they  are  the  productions  of  the  various  expe- 
riences and  applications  of  the  ivisest  thing  in  the  inferior 
rvorld,  viz.  tiyne  ;  which,  as  it  discovers  day  after  day  new 
inconveniences,  so  it  doth  successively,  apply  new  reme- 
dies ;  and  indeed  it  is  a  kind  of  aggregation  of  the  discove- 
ries, results  and  applications  of  ages  and  events  ;  so  that  it  is  a 
very  great  adventure  to  go  about  to  alter    it,  without  very 


72  Law  Miscellanies. 

great  necessity,  under  the  greatest  demonstration  of  safety, 
and  convenience  imaginable. 

"  Bm  another  extreme  is,  an  opposition  to  all  amendments^ 
as  if  what  has  been  once  settled  for  law  must  stand  everlast- 
ingly without  any  alteration.  By  long  use  and  custom,  men. 
esp  'cially  that  ire  ag-^d,  and  have  been  long  educated  in  the 
profession,  and  practice  of  the  law,  contract  a  kind  of  su- 
perstitious veneration  of  it  beyond  what  is  just  and  reason- 
able. Laws  were  not  made  for  their  own  sakes,  but  for  the 
sake  of  those  that  were  to  be  guided  by  them  ;  and  if  they 
be  or  are  become  unuseful  for  their  end,  they  must  be 
amended,  if  it  may  be,  or  new  laws  substituted,  and  the 
eld  repealed.  How  laws  become,  or  are  unuseful  to  thi  ir  end 
upon  two  accounts  :  1.  When  in  their  very  constitution 
they  are  unjust,  and  impossible  to  be  borne  without  remarka- 
ble and  uncommon  inconvenience — or  2.  When  a  law, 
though  never  so  good  in  its  first  institution,  yet  by  reason 
of  some  accidental  emergencies  that  do  most  usually  hap- 
pen in  tract  of  time  either  becomes  obsolete  and  out  of 
use  or  weak,  and  unprofitable  to  its  end  or  inconsistent 
with  some  superinduction  that  time  and  a  variety  of  our  oc- 
casions have  introduced. 

"  So  that  it  seems  apparent,  that  as,  on  the  one  side  some- 
thing may  seem  fit  to  be  done  in  relation  to  the  amendment  of 
the  laws,  yet,  on  the  other  side  it  is  necessary,  that  exceeding 
caution  be  used,  as  well  toitching  the  matter  as  the  manner 
hoxv^  and  t\it personshy  whom^  and  the  seasons  wherein  such 
an  amendment  may  be  made.  For  the  matter:  1.  That  no- 
thingtend  to  the  alteration  of  the  government  in  any  measure ; 
for  that  w^ere  to  introduce  ruin  and  confusion  :  2.  That  no- 
thing be  altered  that  is  a  foundation,  or  principal  integral 
of  the  law  ;  for  these  are  very  sound,  and  ought  not  to  be 
touched  lest  the  whole  fabric  be  endangered.  We  must  do 
herein  as  a  wise  builder  doth  with  ten  house  that  hath  some 
inconveniences,  or  is  under  some  decays.  Possibly,  here  or 
there,  a  door  or  window  may  be  altered,  or  a  partition  made  ; 
but,  as  long  as  the  foundations,  or  principals  of  th^  house,  be 
sound,  they  must  not  be  tampered  with.  The  inconveniences 


Law  Miscellanies.  T3 

in  the  law,  are  of  such  a  nature,  as  may  be  easily  remedied 
without  unsettling  the  frame   itself;  and  such  amendments, 
ahhough  they  seem   small  and  inconsiderable,  will  render 
»  the  whole  fabrick  much  more  safe  and  useful.'* 

"  Touching  the  manner  and  persons,  these  things  are  to  be 
observed,  1.  That  it  be  done  deliberately  and  leisurely.  An 
attentive  consideration  will  every  day  ripen  the  judgment  of 
those  that  shall  be  employed  in  such  a  service  farther  than 
they  can  at  first  imagine.  2.  Let  every  point  be  fully  debat- 
ed and  impartially  examined  before  it  fix  into  a  resolution. 
3.  What  can  be  done  by  the  power  and  authority  of  the  court 
end  judges  without  troubling  a  legislature  for  such  things* 
And  truly  this  would  go  a  great  way  in  the  reformation  of 
things  amiss  in  the  law.  For  it  sometimes  falls  out  that  an 
unnecessary  application  to  the  legislature,  in  things  that  are 
otherwise  curable,  breeds  unexpected  inconveniences.  What 
the  poet  says  of  miracles  I  may  say  in  this  case, 

**  Nee  deus,  intersit,  nisi  dignus  vindice  nodus, 
"  Inciderit " 

*'  4.  In  these  remedies  that  are  given  by  the  legislature, 
let  it  be  particular  and  as  little  left  arbitrio  judicis  as  may 
be.  Upon  such  a  remission,  forward  men  will  do  too  much, 
but  wise  and  cautious  men  will  do  too  little*  Wise  and  honest 
men  desire  to  understand  their  rule  ;  though  some  things 
are  of  such  a  nature,  as  must,  in  the  particular  application, 
be  left  to  the  judges  and  officers  of  courts,  as  the  forming, 
and  modeling  of  wills,  process,  pleadings,  and  other  proceed- 
ings ill  conformity,  and  subserviency  of  what  is  to  be  settled 
by  the  legislature  in  this  behalf.  J.  I^et  no  laws  of  this  na- 
ture have, a  retrospect,  but  let  the  time  that  they  shall  be 
put  in  execution,  have  such  a  prospect,  that  men  may  not  be 
surprized  by  the  change  of  things,  but  may  be  fitted  for,  and 
conusant  of  it." 

The  above  is  an  abstract  of  chief  justice  Hale,  to  which  I 
may  add  some  obser^'ations  of  my  own.  It  will  be  found 
extremely  difficult,  if  not  altogether  impossible,  to  get  a  court 
to  budge  in  a  matter  cti-feform^  either  in  the  construction  of 

K 


74  Law  Miscellanies. 

the  law,  or  in  the  practice  at  the  bar.  The  causes  are  two.  1. 
Attachment  to  decisions ;  and  2.  Timidity  of  mind  in  ef- 
fecting a  reform.  Hence  it  is,  that  whatever  improvement 
has  been  made,  or  will  be  made,  7mtst  come  from  the  legisla- 
ture. I  speak  of  that  province  or  sphere  within  which  the 
courts  have  full  power  to  alter  or  reform  principle^  or  prac- 
tice. For  beyond  this,  they  can  but  suggest  as  other 
individuals,  such  amendments  to  the  law,  as  it  may  have  come 
in  their  way  to  see  to  be  requisite.  But  within  the  sphere  of 
construction^  and  rules  of  practice,  they  cannot  but  have  power 
equi  potens  with  the  legislature.  For  the  practice  of  the  court 
is  the  lozu  of  the  court;  and  no  judge  can  be  so  constrained 
by  a  construction  of  statutes,  as  to  be  absolutely  bound,  to 
follow,  what  was  originally  unreasonable  or  absurd;  or  what 
may  have  become  so,  by  a  change  of  situation,  and  circum- 
stances of  a  people.  The  stare  decisis  will  be  a  considera- 
tion, but  not  a  talismmic  charm  or  spell,  to  bind  the  facul- 
ties of  a  judge  and  keep  him  from  thinking  a  little  for  him- 
self. So  far  as  I  have  had  experience,  the  error  has  been, 
the  too  tenacious  adhe.rence  to  decisions,  both  in  matters  of 
law  and  practice.  But  it  may  be  said,  it  is  the  least  dan- 
gerous extreme.     Grant  it,  but  still  it  is  an  extreme. 

There  are  cases  of  construction  where  a  change  cannot  be 
made  without  the  interposition  of  the  legislature  ;  as  where 
such  construction  has  become  a  rule  of  property,  or  contract; 
and  so  in  fact  a  lazv  so  far  as  respects  what  has  passed  un- 
der it ;  and  it  may  require  the  publicity  of  a  legal  repeal  of  a 
construction  which  may  be  considered  as  having  become  a 
part  of  the  statute  ;  or  of  the  applicatiori  of  a  rule  of  the  com- 
mon law. 

But  in  the  nature  of  the  case  it  cannot  only  be  a  court 
in  the  last  resort,  that  can  be  competent  to  such  a  trust,  or  to 
undertake  such  a  task.  And,  hence  it  is  usual,  and  perhaps 
can  only  be  from  some  chief  justice  of  a  court,  or  chancellor, 
that  such  improvement  can  arise.  There  have  been  great 
minds  in  such  a  situation  who,  have  given  philosophy,  and 
liberality,  to  the  science  of  the  law  ; 


Law  Miscellanies.  5*5 

'' Enlarged  the  former  narrow  bounds, 

With  nature's  mother  wit." 
A  Mansfield,  a  Hardwicke,  have  had  this  praise.  The 
bulk  trudge  on  through  the  slough  as  Hodge  did  even  af- 
ter the  bridge  was  built ;  so  far  are  they  from  attempting  to 
build  a  bridge.  Such  may  have  the  praise  of  being  what 
are  sound  lawyers;  but  must  be  contented  with  this,  and 
cannot  be  called  great  judges.  I  will  admit,  that  it  is  only 
one  who  has  traversed  all  space  of  the  legal  science ;  or  in 
the  pithy  language  of  the  great  Baron,  have  obtained  the 
v^antage  ground  of  science,  that  can  venture  such  a  leap,  or 
in  fact  ought  to  venture  it.  They  will  break  their  necks  if 
without  such  Just  confidence  \n  themselves  founded  upon  the 
actual  fact  of  reading  and  reflection  and  great  original  judg- 
ment, they  attempt  it.  But  where  such  a  mind  happens  to 
be  at  the  head  of  the  highest  court,  little  interposition  of 
the  legislature,  or  atleast  much  less,  will  be  required  in  mat- 
ters that  respect  a  reform  of  the  law.  Will  an)^  man  say 
that  the  legislature  of  England,  could,  in  many  years,  have 
given  such  a  spring  to  the  dictates  of  common  sense  and 
such  reason  as  some  judges  have^ given  in  the  course  of  a  short 
sitting  on  the  bench.  The  legislature  can  act  only  by  de- 
tail, and  in  particulars,  whereas  the  able  judge  can  remove 
at  once,  or  alter,  what  was  originally  faulty  or  has  become 
disproportioned  in  the  building.  But  no  one  but  a  skilful 
architect^  and  who  can  have  the  whole  edifice  in  his  mind, 
with  its  proportions  ought  to  be  suffered  to  attempt  this. 
The  legislature  therefore,  but  in  special  cases,  ought  to  be 
called  upon  for  a  reform  in  the  construction,  or  practice  of  the 
law.  But  where  a  court  who  has  power,  will  not  reform 
a  construction  that  is  no  longer  applicable  to  the  circufn- 
stances  of  a  government,  or  the  circumstances  of  a  people  ; 
or  a  practice  that  has  become  absurd  or  unintelligible,  what 
can  the  legislature  do,  but  interfere  ?  Where  a  struggle  for 
a  reform  is  founded  in  such  pressure,  it  will  have  its  vent 
even  though  it  should  blow  up  a  valuable  principle,  or  the 

whole  constitution  together, 

/ 


NOTES  ON 


BLACKSTONE'S  COMiMENTARIES, 


POINTING   OUT  VARIATIONS   IN    THE   LAW    OF    PENNSYLVANIA 
FROM     THE    COMMON     AND     STATUTE     LAW     OF     ENGLANS*' 
WITH    OTHER   MATTERS    OF   A   GENERAL  NATURE. 


*'  And  it  (law)  is  that  rule  of  action,  which  is  prescribed  by 
«  some  superior,  and  which  tlie  inferior  is  bound  to  obey."  1  Bl. 
Com.  38. 

Judge  Wilson,  attacks  this  definition  in  his  lectures  on 
law  ;*  and  considers  it  of  great  moment  to  show  that  it  is 
incorrect,  as  being  anti-republican.  "  A  superior  !  let  us 
*'  make  a  solemn  pause ;  can  there  be  no  law  without  a  su- 
*'  perior  ?  Is  it  essential  to  law  that  inferiority  should  be  in- 
*'  volved  in  the  obligation  to  obey  it  ?  Are  these  distinc- 
*'  tions  at  the  root,  of  all  obligation  ?  There  are  laws  that  are 
**  human  J  does  it  follow  that  in  these  a  character  of  supe- 
*'  riority  is  inseparably  attached  to  him  who  makes  them  ? 
**  And  that  a  character  of  inferiority,  is  in  the  same  man- 
"  ner,  inseparably  attached  to  him  for  whom  they  are  made  ? 
"  What  is  this  superiority  ;  who  is  this  superior  ?  by  whom 
"  is  he  constituted  j  whence  is  his  superiority  deduced? 
"  Does  it  flow  from  a  source  that  is  human ;  or  does  it  flow 
*'  from  a  source  that  is  divine  ?  From  a  human  source  it 
"  cannot  flow ;  for  no  stream  issuing  thence,  can  rise  higher 
*'  than  the  fountain.''  Judge  Wilson  tells  us  that  he  hesi- 
tates himself  to  give  a  definition  of  law,  but  takes  a  view  of 

*  Lectures,  part  1.  chap.  II.  61. 


Law  Miscellanies.  77 

a  number  of  those  which  have  been  given  from  Aristotle 
down ;  finds  fault  with  most ;  but  considers  this  of  Black- 
stone  as  the  most  exceptionable,  as  leading  to  the  most  per- 
nicious principles  of  arbitrary  government.  On  the  contrary, 
I  am  not  able  to  find  any  fault  with  it,  or  to  see  any  germ 
of  despotism  in  it ;  and  I  answer  his  question,  by  saying  that 
the  community  is  the  superior  who  prescribes  the  law,  and 
the  individual  the  inferior  to  whom  it  is  prescribed.  The 
whole  is  greater  than  a  part.  Judge  Wilson  lays  it  down  as 
a  position  which  he  conceives  overthrows  the  definition,  that, 
"  consent  alone  in  a  free  government  can  make  a  law  bind- 
ing ;"  but  is  not  this  consent  given  by  every  individual  at 
the  framing  of  the  constitution,  that  the  laws  made  under  it 
shall  be  obeyed  ?  The  whole  body  of  the  people  is  superior 
to  a  single  one.  "  It  is  better  that  one  man  should  die  than 
the  whole  people  perish."  The  salus  reipublicae,  which  was 
the  Roman  phrase  ;  or  the  salus  pbpuli,  which  is  that  of  our 
law,  evinces  the  source  and  the  obligation  of  our  laws.  We 
the  people,  the  superior,  frame  the  law  ;  and  you  the  indi- 
vidual, the  inferior,  must  be  governed  by  it.  In  the  same 
manner  as  an  individual  member  of  the  natural  body  is  of 
less  consideration  ;  in  other  words  of  an  inferior  consider- 
ation to  the  whole  ;  so  is  an  individual  member  of  the  body 
politic,  to  the  members  collectively.  It  would  seem  to  be  but 
an  affectation  of  republicanism,  to  carp  at  a  definition  so  ex- 
pressed, while  the  part  is  considered  relatively  to  the  whole 
as  in  subjection.  Jus,  justitia,  juro,  juramentum,  injustitia, 
injuria,  are  all  of  the  root  Jubeo,  which  signifies  to  command. 
Lex  est  ratio  summa  insita  in  natura  quae  ea  quje  facienda 
sunt,  jubet,  prohibetque  contraria.  Cic.  "  In  the  same 
manner  our  English  word  just  is  the  past  participle  of  the 
verb  jubere.  Right  is  no  other  than  rectum,  the  past  par- 
ticiple of  the  latin  verb  regere.  Thus  when  a  man  demands 
his  right,  he  asks  for  that  which  he  is  ordered  to  have.  A 
just  man  is  such  as  he  is  commanded  to  be  ;  qui  leges  juraque 
servat.  Every  thing  that  is  ordered  or  commanded  is  right 
andjust."^     The  etymology  of  every  word  in  the  language 

*  Diver,  of  Purley, 


7B  Law  Miscellanies. 

that  respects  law,  is  from  a  root  that  implies  the 'act  ot  a 
superior;  and  it  seems  to  me  impossible  to  have  any  idea  of 
a  law  but  of  that  which  is  imposed.  To  reject  these  terms 
therefore,  or  a  definition  which  retains  them,  would  seem  t© 
me  to  savour  of  the  French  reform,  when  terms  were. reject- 
ed because  the  things  were  obnoxious. 

The  carrying  a  law  into  effect,  in  other  words,  the  exe- 
cution of  the  law  shows  a  superior.  A  man  does  not  ipso 
facto  consent  to  be  hanged.  He  may  be  said  to  consent  con- 
structively from  having  given,  in  contemplation  of  law,  a 
previous  consent  to  the  law  and  the  effect  of  it.  But  eo  in- 
stante ;  in  the  act  of  inflicting  the  penalty,  to  suppose  an 
assent  would  be  absurd.     It  is  enforced  by  a  superior. 

None  ever  felt  the  halter  drz^w 
With  good  opinion  of  the  law.* 

The  correct  idea  is  that  quoad  the  law,  or  with  relation 
to  the  making,  the  legislature  is  a  superior  power ;  but  with 
relation  to  the  constitution,  which  is  the  act  of  the  conven- 
tion which  framed  the  society,  it  is  not  superior.  It  is 
diverse  intuito,  that  superiority  or  inferiority  is  affirmed. 
But  if  any  principle  was  to  be  deduced  from  these  terms,  such 
as  the  divine  right  of  the  magistrate,  it  would  be  of  impor- 
tiance. 


"  — —  Every  law  may  be  said  to  consist  of  several  parts  ;  one 
«  declaratory,  8cc.  another  directory,  &c."     1  Bl.  Com.  53. 

By  an  act  of  assembly  for  the  gradual  abolition  of  sla- 
very, March  1,  1780,  §5.  "The  owner  of  any  negro  or  mu- 
latto slave,  or  servant  for  life,  or  years,  now  within  this  state, 
shall  deliver  in  writing  to  the  court  of  record  of  the  county 
or  city,  in  which  he  shall  inhabit,  the  name  and  surname, 
and  occupation  of  such  owner,  and  the  name  of  the  county 
and  township  wherein  he  resideth ;  and  also  the  name  or 
names  of  any  such  slave,  &c.  with  the  age  and  sex,  i?i  order 

*  Hudibras. 


Law  Miscellanies.  79 

to  ascertain  and  distinguish^- he.  which  particulars  shall  be 
entered  iri  books,  Sec.  and  that  no  negro  or  mulatto  now  within 
this  state,  shall,  from  and  after,  &c.  be  deemed  a  slave  or 
servant  for  life^  or  for  years,  unless  his  or  her  7iame  shall  be 
entered  as  aforesaid  on  such  record,"  This  law  has  been  hol- 
den  directory  as  to  all. particulars,  except  the  na)ne  ;  and  this 
by  reason  of  the  negative  in  the  latter  clause  of  the,sentence  ; 
and  even  parol  proof  has  been  admitted  to  establish  the 
identity  where  the  slave  or  servant  was  recorded  by  a  wrong 
name  or  colour ;  the  object  of  the  act  being  declared  to  be, 
to  ascertain  and  distinguish  ;  and  this  on  the  ground  that  this 
act  was  in  derogation  of  the  right  of  property  in  the  master, 
taken  from  him,  without  an  adequate  compensation,  and  ta 
be  construed  favourably  for  his  claim  of  service.  This  also 
on  the  ground  of  general  inconvenience,  as  from  the  ignorance 
of  owners,  or  error  of  clerks,  every  requisite  of  the  law  had 
been,  in  few  instances  complied  with. 

It  is  a  maxim  of  law,  that  an  affirmative  statute  does 
not  take  away  the  common  law.  And  if  a  statute,  without 
any  negative  words,  declare  that  deeds  shall  have  in  evidence 
a  certzin  i^ffect,  provided  particular  requisites  are  complied 
xvith,  this  does  not  prevent  their  being  used  as  evidenc-e, 
though  the  requisites  are  not  complied  with,  in  the  same  man- 
ner as  they  might  have  been  before  the  statute  passed. 
Though,  it  is  in  the  general  true,  that  if  an  affirmative  sta- 
tute which  is  introductive  of  a  new  law  direct  a  thing  to  be 
done  in  a  certain  manner,  that  thing  shall  not,  even  although 
there  are  no  negative  words,  be  done  in  any  other  manner. 
The  power  of  construing  a  statute  is  in  the  judges  ;  who  have 
authority  over  all  laws,  and  more  especially  over  statutes  to 
mould  them  according  to  reason  and  convenience,  to  the  best 
and  truest  use.  6  Wil.  Bac.  378. 

By  an  act  of  8th  Ap.  1785,  Sec.  9.  it  is  provided  "that 
every  survey  upon  any  warrant,  shall  be  made  by  actual  going 
upon  and  measuring  off  the  land,  and  marking  the  lines  to 
be  returned  upon  such  warrant,  after  the  warrant  authorising- 
such  survey  shall  come  to  the  hands  of  the  deputy  surveyor,  to 
whom   the  same  shall  he  directed ;    and   every  survey  made 


80  Law  Miscellanies. 

theretofore  shall  be  accounted  clandestine,  and  shall  be  void 
and  of  no  effect  whatever.  The  first  part  of  this  sentence 
has  been  held  directory  to  the  officer,  and  the  survey  being 
void^  to  refer  only  to  the  making  it  before  the  warrant  comes 
to  hand.  This,  because  there  could  be  no  authority,  to  make 
the  survey  without  the  warrant;  but  the  going  on  the  ground^ 
&c.  refers  to  the  mode  and  manner  of  making  it. 

This  construction  as  to  what  was  considered  directory^ 
was  also  applied,  nobis  dissentientibus,  to  surveys  made  un- 
der the  act  of  April  3d,  1/92.  I  dissented,  because  a  main 
object  of  the  survey  being  the  designation  of  boundary^  that 
settlers  might  know  what  was  left  out  by  the  warrant  hold- 
ers in  order  to  enter  to  settle,  it  was  a  substantial  requisite 
under  this  act,  to  have  the  lines  marked.  It  may  be  said 
that  it  is  hard,  that,  from  the  neglect  of  the  surveyor,  a  party 
should  suffer  ;  but  it  may  be  considered  his  own  act,  where 
he  had  the  superintendance  of  seeing  the  survey  executed. 

It  may  be  seen  from  these  examples,  that,  in  what  is  call- 
ed the  directory  part  of  a  statute,  a  distinction  may  be  taken 
as  to  what  is  merely  directory  ;  and  the  not  complying  strictly 
with  which,  will  not  avoid  the  act  done  under  it.  The  act 
pursuing  the  statute  strictly  as  to  such  requisites,  must  be 
construed  subject  to  the  consideration  of  these  not  being 
matter  of  substance  and  contravening  the  whole  policy  of  the 
act;  but  as  having  a  reference  to  the  mode  or  manner  of 
doing  a  thing.  For  it  is  not  in  human  vigilance,  or  the  prac- 
tical power  of  officers  or  party  to  observe  all  formalities. 

By  an  act  of  24th  February,  1770,  establishing  the  mode 
by  which  husband  and  wife  shall  convey  the  estate  of  the 
wife,  a  judge  or  justice  is  authorised  to  take  the  acknow- 
ledgment of  such  conveyance,  in  doing  which  he  shall  ex- 
amine the  -wife  separate  and  apart  from  her  husband^  and 
shall  read  or  otherwise  make  known  the  fill  contents  of  such 
deed  and  conveijance  to  the  said  wife;  ajid  if  upon  such  sepa- 
rate examination^  she  shall  declare  that  she  did  voluntarily^ 
and  of  her  oxvn  free  will  and  accord^  seal,  and  as  her  act  and 
deed  deliver,  the  said  deed  or  conveyance,  xvithont  any  coer- 
cion or  compulsion  of  her  said  husband,  every  such  deed  of 


Law  Miscellanies.  81 

ionveyance  shall  be  good  and  valid  in  law.  This,  from  an 
early  period,  would  seem  to  have  been  considered  directory 
to  the  officer  J  and  however  these  requisites  might  have  been 
observed  in  taking  the  acknowledgment,  yet  in  the  certifi- 
cate of  the  officer  endorsed  upon  the  deed,  they  were  not  al- 
ways set  forth  as  having  been  complied  with.  The  ques- 
tion was  whether  in  such  certificate  it  must  be  set  forth  that 
the  requisites  had  been  complied  with.  It  is  the  presump- 
tion of  law  that  an  officer  will  do  what  he  \Kas  directed  to  do. 
Omnia  recte  et  solemniter  acta  presumuntur.  1  had  so  rul- 
ed it  in  a  case  on  the  circuit ;  chief  J.  Tilghman  had  ruled 
it  otherwise,  on  his  circuit,  about  the  same  time.  The  point 
came  before  the  court  in  bank  ;  and  it  was  ruled  that  so  far 
as  respected  the  substantial  requisites^  the  examining  a  part 
&c.  it  must  appear  on  the  certificate,  that  these  had  been 
complied  with  ;  a  substantial  adherence  to  the  manner  of  ac- 
knowledgment prescribed  by  law,  was  indispensable  ;  and 
that  it  must  appear  upon  the  certificate.     2  Binn.  480. 

A  distinction  was  taken  by  the  judges  who  ruled  it, 
(Yates  and  Smith)  between  a  conveyance  by  the  femme  of 
land  in  her  own  right,  and  of  lands  in  which  she  might  have 
a  right  of  dower  ;  but  this  distinction  was  overruled  by  the 
chief  justice  and  myself,  in  Kirk  v.  Dean.     2  Binn.  341. 


— —  Ex  post  facto.     1  Bl.  Com.  46. 

No  ex  post  facto  law,  not*  any  law  impairing  contracts, 
shall  be  made.     C.  S.  P.  art.  9.  sec.  7. 

No  ex  post  facto  law  shall  be  passed.  C.  U.  S.  art.  1. 
sec.  10. 

Ex  post  facto ;  ex  jure  post  facto  ;  or  ex  post  facto  law. 
This  embraces  criminal  as  well  as  civil  law.  The  impairing 
contracts  is  but  a  species  of  the  ex  jure  post  facto.  Retro- 
spective acts  are  not  always  ex  jure  post  facto  ;  nor  does  the 
tei-m  mean  this,  though  it  may  be  so  applied. 

L 


8j5.  Law  Misceilanxes. 


EVERY  individual  of  the  community,  is  in  contemplation 
6f  law,  supposed  to  be  present  at  the  making  of  the  law ;  and 
in  fact  it  was  the  case  in  the  ancient  republics.  When  re- 
presentation came  to  take  place  it  ceased  to  be  the  case ;  and 
yet  the  idea  is  still  retained  in  some  measure.  For  though 
llieans  are  used  to  promulgate  a  law  to  those  represented, 
who  are  supposed  to  be  at  a  distance,  yet  the  maxim  still 
holds  that  they  are  supposed  to  know  the  existence  of  a  law 
from  the  date.  It  is  thus  that  in  all  affairs  of  men  when  a 
change  takes  place,  all  things  are  not  immediately  accommo- 
dated to  that  change.  In  England  there  is  nothing  to  relieve  an 
individual  from  the  penalty  of  the  law  even  where  death 
is  the  penalty  ;  and  where  there  was  even  a  moral  or  natural 
impossibility  that  he  could  be  informed  of  it,  but  the  inter- 
position of  the  executive  pardon.  The  same  thing  here. 
Why  not  have  provided  by  the  constitution  that  no  law 
should  take  effect  but  in  a  certain  time  after  the  enactment. 
Or,  as  it  is,  why  not  always  provide  in  the  law  itself,  as  is 
done  in  some  cases,  that  not  until  after  a  certain  time,  and 
that  sufficient  to  enable  the  citizens  at  the  greatest  dis- 
tance to  hear  of  it,  should  it  take  effect.  The  means  pro- 
vided of  publication  in  the  gazettes,  forv/arding  to  protho- 
notaries,  sending  copies  to  officers,  &c.  leaves  still  a  space 
during  which  there  is  no  moral,  or  perhaps,  natural  possi- 
bility of  hearing  of  it. 

By  the  act  of  3  Cong.  C.  115,  the  secretary  of  state  is 
required  to  furnish  the  executives  of  the  several  states  and 
of  the  territories  north,  west,  and  south  of  the  river  Ohio, 
with  4500  copies  of  the  edition  of  the  laws  of  the  United 
States,  by  that  act  directed  to  be  printed,  and  the  like  num- 
ber of  the  acts  passed  at  each  succeeding  session,  to  be  divid- 
ed among  them  according  to  the  rule  for  apportioning  repre- 
sentatives, and  distributed  as  the  executive  shall  deem  most 
conducive  to  the  general  information  of  the  people  ;  and  by 
the  act  of  5  Cong.  C.  136,5000  copies  are  directed  to  be 
printed  and  distributed  in  like  -manner.     The   act  further 


Law  Miscellanies.  iBt$ 

directs,  that  every  order,  resolution,  or  law  passed  by  con- 
gress, shall  be  published  by  the  secretary  of  state  in  at  least 
one,  and  not  more  than  three,  of  the  newspapers  in  each  state. 
We  may  see  from  hence'  that  it  is  still  considered  the  prin- 
ciple that  these  laws  take  effect  from  the  date. 


"  But  farther  ;  municipal  law  is  a  rule  of  civil  conduct  prescrl- 
♦^  bed  by  the  sujircme  poKver  in  a  state"      1   Bl.  Com.  46. 

Judge  Tucker  takes  exception  to  this  definition  ;  he  pre- 
fers that  of  Justinian  ;  jus  civile  est  quod  quisque  sibi  popu- 
lu3  constituitj  which  he  considers  as  comprehending  the 
whole  body  of  national  institutions,  from  whatever  source  or 
authority  derived  ;  whether  the  immediate  act  of  the  people, 
or  that  of  the  ordinary  legislature  or  founded  on  long  and 
immemorial  usage  ;  whereas  the  former  definition  presup- 
poses an  act  of  the  legislature  in  every  case  whatsoever  .; 
which  he  presumes  was  not  the  fact ;  or  that  all  unwritten 
rules  of  law,  are  founded  upon  some  positive  statute,  the 
memory  of  which  has  been  lost.  But  cannot  the  law  mak- 
ing power,  actor  enact  without  committing  to  writing?  The 
word  '•'•  prescribe*'  doubtless,  signifies  to  write  out.  But  it 
is  used  in  common  parlance  to  mean  no  more  than  to  direct 
or  order ;  and  no  more  here.  If  we  consult  Tacitus  on  the 
manners  of  the  Germans,  which  is  the  earliest  monument  of 
our  Saxon  ancestors  ;  for  these  were  Germans  ;  we  shall  find 
that  the  manner  of  passing  laws,  or  deliberating  on  any  sub- 
ject, was  without  writing;  at  least  there  is  no  mention  made 
of  it.  He  depicts  minutely  ;  but  we  hear  of  no  clerk  ;  nor 
does  it  appear  that  they  had  the  use  of  letters.  For  Caesar 
contrasts  them  with  the  Gauls,  who  had  letters.  Publicis 
privatisque  rationibus  litteris  utuntur.  Germani  multum 
ab  hac  consuetudine  differunt.  Nam  neque  Druides  ha- 
bent.*  It  appears  that  their  learning  was  from  Britain ; 
disciplini  in  Brittania  reputa,  atque  inde  in  Galliam  trans- 
lata  esse  existimatur.  There  can  be  no  doubt,  therefore, 
but  that  the  early  Britcfcis  had  the  use  of  letters  before  thp 

*  Caes.  Com.  lib.  6. 


84  Law  Miscellanies. 

Romans  came  amongst  them  ;  and  the  Romans  had  the  use 
of  letters  from  the  earliest  period;  and  might  have  introdu- 
ced writing  amongst  the  Britons  had  it  not  been  known  be- 
fore. But  it  is  not  very  probable  that  the  Saxons  coming 
in  after  the  Romans,  could  be  svich  apt  scholars  as  in  a  short 
time  to  acquire  the  use  of  letters  and  to  be  in  the  habit  of 
recording  their  public  transactions.  There  remains  no  mo- 
nument of  a  parliamentary  record  of  the  Saxon  times  ;  nor 
until  a  considerable  time  after  the  Norman  conquest.  "  We 
possess  acts  of  parliament,"  says  Reeves,  "  from  Magna 
Chart.  9,  Hen.  III.  to  the  time  of  Ed.  111.  and  from  thence 
in  a  regular  series  to  the  present  time.  The  statutes,  except 
some  very  few  enacted  by  the  legislature  before  that  period, 
are  lost."* 

When  we  talk  of  a  custom  v/e  must  remount  to  some  con- 
vention ;  or  gathering  of  the  people  to  origmate  the  rule. 
Even  supposing  but  two  persons  in  a  community,  there  must 
be  such  assent,  and  so  of  more;  so  that  I  can  see  nothing 
in  a  distinction  to  be  taken  between  the  origin  of  an  unwrit- 
ten custom  and  a  written  law.  They  are  both  equally  the 
act  of  a  legislature. 

The  term  Constitution  is  familiar  to  the  English  lawyer 
and  civilian.  This  is  chiefly  common  or  unwritten  law.  It 
consists  of  the  lex  and  consuetudines.  It  respects  the  sys- 
tem of  government  in  all  its  parts,  from  the  right  of  suffrage 
in  the  lowest  frank-tenant,  to  the  hereditary  right  of  the 
monarch  ;  embracing  all  the  interipediate  officers  and  offices, 
legislative,  judicial,  or  executive.  The  sphere  of  each  is 
known  and  the  duties  assigned;  no  encroachment  to  be  made 
by  one  upon  the  other;  the  orbit  of  every  power  defined  ; 
moving  in  its  proper  groove.  There  is  a  multitude  of  in- 
stances where  an  interference  is  resisted ;  in  the  case  of  the 
king  for  instance  in  an  attempt  to  give  a  proclamation  the 
force  of  a  law.  It  would  be  called  unconstitutional  for  the 
lords  or  commons  to  vote  themselves  permanent,  taking 
away  the  power  of  the  king  to  prorogue  or  dissolve.  We 
hear    a   great  deal  on  the  subject  of  preserving  the  consti- 

*  Reeves  b,  1.  c.  1. 


Law  Miscellanies.  85 

tution ;  bringing  it  back  to  its  original  principles,  Sec.     The 
saying,   therefore,  that  in    England  there  is  no  constitution, 
means  onlv  that  there  has  not  been  a  convention  of  the  peo- 
ple within  our  memory,  framing  a  constitution,  unoictu,  and 
making  a  record  in  writing   of  the    provisions  therein  con- 
tained ;  but  it  has  grown  up,  and  has  been  formed  by  time, 
until  it   has  become,  in  some  degree,  fixed  and  understood. 
But  in  these  states  we  have  the  frame   of  government  redu- 
ced to  writing  with   the   provisions  ;  and  in  all  or   most  of 
them  certain  things  stated  which  the  legislative  body  shall 
not    have  the  power   of   doing.     In  England  the   power   of 
parliament  is  said  to   be  omnipotent.     It  extends  to  every 
thing  that  does  not  contain  an  actual  impossibility ;  and  yet 
Coke  (Sir    Edward)   has  said  somewhere,  my  recollection 
does  not    serve   me,  that  a   larv  against   reason   is  void.     If 
void  the  judges  Avould  be  justifiable  in  declaring  it  a  nullity. 
It  is  in  my  recollection  that  Cambdcn  some  where  says  that 
the  judges  have  in  contemplation  of   law,  the  power  to  de- 
clare an  act  of  the  legislature  void ;  but  they  could  not  be 
expected  to  do  it  while  those  remained  in  power  at   whose 
instance  the  law  had  been  obtained.      Whether   he  respects 
an  impeachment,  or  the  power  of  the  king  to  remove,  may 
be  a  question.     Under  the  constitution  of  the  United  States, 
there  have  been  instances  of   the   supreme  court   declaring 
a  law  void;  but  no  instance  that  I    know  of  in  Pennsylva- 
nia under  the  present  constitution  though  many  arguments  to 
the  court  on  the  subject  of  the  constitutionality  of  laws,  which 
would  seem  to  imply  the  idea  that  the  judiciary  had  the  pow- 
er to  determine,  which  will  probably  com.e   to  a  point  at  no 
distant  day,  and  receive  a  decision.     But  it  may  be   said  of 
it  at  present,  to  be  questio  vexata,  et  adhuc  sub  judlce  lis  est. 
I  have  said,  under  the  present    constitution.     For  there 
are  said  to  have  been  cases  under  that  of  '7'6  when  there  was 
but  one  branch  in  the  legislature,  and  the  Governor  had  no 
negative.     But  under  the  present  constitution,  there  is  less 
reason  for    the  exercise  of   such   a  power,  when  there   is  a 
check  of  one  upon  another  branch ;  and  the  veto  of  the  Gover- 
nor upon  both.   But  it  is  stated,  in  the  argument  in  Bonhams 
case,  8  Coke,  118,  that,  in  many  cases,  the  common  law  wil! 


86  Law  Miscellanies. 

controul  acts  of  parliament,  and  some  times  adjudge  them  to 
be  actually  void.  Many  instances  are  there  reduced  in 
which  such  a  power  may  be  exercised.  And  in  Hardres 
140,  "  the  law  and  choice  of  nature  is  said  to  be  superior  to 
all  positive  laws,  and  is  called  lex  eterna  or  the  moral  law." 
7  Rep.  12  b.  Calv.  case;  "  It  is  the  law  that  was  infused 
into  the  heart  of  man  at  his  first  creation ;  and  whatever  po- 
sirive  laws  are  contrary  to  this  law  of  nature  and  reason, 
they  are  void  of  themselves."  And,  in  Hobart  87,  an  act  of 
parliament  made  against  natural  equity  as  to  make  a  man  a 
judge  in  his  own  cause,  is  void  in  itself;  for  jura  naturse  sunt 
immutabilia,  and  they  are  leges  legum. 


"  The  decisions  therefore  of  courts  are  held  in  the  highest  re- 
"  gard,  and  are  not  only  preserved  as  authentic  records  in  the  trea- 
"  suriesofthc  several  courts,  but  arc  handed  out  to  public  view  in 
"  the  numerous  volumes  of  re/2or;s  which  furnish  the  laAvyer's  li- 
"brary."     1  Bl.  Com.  71. 

Prior  to  the  year  books  ;  there  are  said  to  be  reports  of 
cases  adjudged  during  the  reign  of  Edward  I.  in  manuscript 
in  certain  public  libraries.  The  year  books  are  so  called  be- 
cause they  were  published  annually  from  the  notes  of  certain 
persons,  who  were  paid  a  stipend  by  the  crown  for  this  em- 
ployment. The  establishment  of  reporters,  is  said  to  have 
been  first  made  by  this  king,  (Edw.  II)  ;  or  more  probably  at 
the  latter  end  of  the  former  reign.  However,  as  we  have 
no  fruits  of  such  an  appointment  till  the  beginning  of  this 
reign,  we  may  suppose,  it  did  not  take  place  till  then. 

The  year  books  were  continued  down  to  the  27th  Hen. 
VIII.  and  embrace  some  part  of  that  year  ;  though  during 
that  reign,  there  are  Dyers  reports,  with  some  scattered 
cases  in  Keilway,  Jenkins,  Moore,  and  Benloe ;  and  towards 
the  end  of  the  reign,  in  Leonard,  4  Reeves,  414. 

Pennsylvanifwhas  the  credit  of  having  given  the  Jirst  in 
point  of  date,  and  not  the  last,  in  point  of  excellence,  in  the  re- 
ports of  A.  J.  Dallas;  the  first  volume  of  which,  he  palish- 


Law  Miscellanies.  87 

ed  tlie  1st.  May  1790  j  but,  which  embraces  cases  as  far  back 
as  1754  :  these  collected  with  much  research  from  that  peri- 
od downwards.  But  until  the  chief  justiceship  of  M'Kean, 
the  cases  are  few;  and,  except  as  to  their  antiquity,  of  mi- 
nor importance.  Chief  justice  M'Kean  was  a  great  man ; 
his  merit  in  the  profession  of  the  law,  and  as  a  judge  has  ne- 
ver yet  been  sufficiently  appreciated.  It  is  only  since  I  have 
been  upon  the  bench,  that  I  have  been  able  to  conceive  a  just 
idea  of  the  greatness  of  his  merit.  His  legal  learning  was 
profound,  and  accurate  ;  but,  in  the  words  of  the  poet, 
Materiem  superabat  opus — — 

The  lucidity  of  his  explication ;  and  the  perspicuity  of 
his  language  ;  which  is  the  first  excellence  in  the  communi- 
cation of  ideas,  was  perfect ;  but  I  never  saw  equalled  his 
dignity  of  manner  in  delivering  a  charge  to  the  jury,  or  on 
a  law  argument,  to  the  bar.  But,  what  is  still  more,  his  com- 
prehension of  mind  in  taking  notes,  so  as  to  embrace  the 
substance^  and  yet  omit  nothing  material^  has  appeared  to  me 
inimitable.  This,  I  say,  thinking  of  him  as  a  man  out  of  the 
world,  as  from  the  course  of  years,  he  niust  be  supposed  soon 
to  be. 

The  decisions  also  which  these  reports  contain,  and  ob- 
servations on  points  of  law,  of  chief  justice  Shippen,  render 
them  valuable  ;  not  only  on  account  of  their  intrinsic  worth  ; 
but  also  as  preserving  some  remains  of  the  legal  knowledge 
of  a  great  judge,  and  also  of  the  most  amiable  of  men; 
whose  integrity  and  mannerSy  attracted  the  respect  and  at- 
tachment of  all  persons. 


-Qualem  candidiorem- 


These  reports  of  Mr.  Dallas  are  the  only  monuments  of 
the  rudiments  of  our  Pennsylvania  law,  and  the  early  deci- 
sions ;  and,  being  given  in  a  concise,  and  perspicuous  stile, 
will  last  as  long  as  the  jurisprudence  of  the  country  ;  being  in- 
terwoven with  it.  Even  the  two  first  volumes  which  contain 
fewer  of  the  cases  in  the  supreme  court  of  the  United  States, 
and  district  court,  have  not  failed  to  attract  the  attention  of 


68  Law  Miscellanies. 

the  practitioners  of  the  law,  in  other  states  ;  and  have  been 
cited  in  the  courts,  as  containing  many  principles  of  common 
law,  and  practice,  which  render  them  instructive. 

With  regard  to  the  reports  of  Mr.  Binney  which  have 
succeeded  to  those  of  Mr.  Dallas,  I  shall  say  nothing ;  be- 
cause, to  these,  I  may  apply  to  some  small  extent,  the 

quorum  pars — 

This  however  I  cannot  help  thinking;  and  I  may  take  the 
liberty  of  expressing  so  much,  that  these  reports  have  given 
me  a  chance  to  be  remembered,  longer  than  I  would  other- 
wise have  been. 

Mr.  Peter  A.  Brown  a  young  gentleman  of  talents,  and 
industry  has  commenced  a  series  of  reports  of  cases  in  the 
inferior  courts,  with  such  others  as  he  may  be  able  to  procure 
from  the  higher :  This,  that  he  might  not  interfere  with  Mr. 
Binney,  who  had  published  first,  and  occupied  this  sphere ; 
and,  reports  of  cases  in  the  courts  of  common  pleas,  orphans 
courts,  and  courts  of  quarter  sessions,  were  v^anted  in  addi- 
tion to  complete  the  history  of  Juridical  proceedings.  But 
though  the  sphere,  in  contemplation  of  law,  may  be  the  more 
humble,  yet  the  ability  may  not  be  less  j  and  the  labour  more. 
Equal  discernment  and  accuracy  is  required,  and  though 
the  circulation,  and  emolument  cannot  be  equal,  yet  the 
praise  may  be  equal ; 

In  tenui  labor,  at  tenuis  non  gloria. 

The  report  of  a  decision  of  any  court ;  or  of  the  opinion 
of  any  judge,  must  be,  from  the  nature  of  it,  examinable. 
The  statement  of  the  case,  so  far  as  may  depend  upon  the 
record,  may  be  given  with  exactness  ;  and  the  result  of  the 
decision  ;  for  that  can  be  taken  from  the  record.  But  the 
sentiments  delivered  are  supposed  to  be,  and  frequently  are, 
the  notes  of  the  counsel,  the  judge,  or  of  the  reporter  him- 
self who  catches  in  court,  the  argument  or  the  opinion.  This, 
with  all  the  attention  and  quickness  that  is  possible,  cannot 
be  done  ;  for  the  pen  of  the  most  ready  writer,  will  not  be 
able  to  keep  pace,  currente  calamo  with  the  oral  expression  ; 
and  therefore  the  substance  can  only  be  obtained ;  and  even 
v/ith  regard  to  this,  misconception,  or  omissions,  are  unavoi- 


Lavt  Miscellanies.  J89 

dabie.  It  follows  therefore  that  the  report  of  a  case  like  a 
record  cannot  import  absolute  verity.  But  even  after  all, 
supposing  the  decisions  of  the  court,  with  the  reasons  of 
them,  to  be  given  perfectly,  these  are  but  the  evidence  of  law, 
and  are  examinable.  The  judges  themselves  who  make  a  de- 
cision have  a  right  to  examine,  and  reverse  their  own  judg- 
ment, in  a  subsequent  case.  This,  subject  to  their  legal  dis- 
cretion, under  certain  considerations  must  govern.  For 
even  though  a  decision  may  be  contrary  to  legal  principles, 
or  the  just  construction  of  a  statute,  yet  in  cases  where  a 
principle  is  merely  arbitrary,  and  from  the  artificial  reasons 
of  law,  when  it  has  become  a  rule  of  property,  or  practice, 
the  advantage  of  certainty  in  the  lav/  will  justify  the  sanction 
of  it.  This  in  all  matters  that  are  not  contrary  to  ymturat- 
justice  or  public  convenience.  The  non  ita  refert  quae  sit 
lexquam  quod  sit  nota  applies.  It  is  not  uncommon,  there- 
fore, for  a  court  or  judge  to  say,  ivere  it  a  new  case  we 
might  think  otherwise. 

In  case  of  an  artificial  rule  of  law,  therefore,  there  can 
be  no  difficulty  in  the  mind  of  a  judge,  in  supporting  former 
decisions,  though  contrary  to  his  own  judgment,  as  to  v.hat 
might  appear  to  him,  ought  to  have  been  decided..  But 
subject  to  this  consideration  of  expediency,  he  cannot  be 
supposed  not  to  have  the  right  to  reverse  the  former  judg- 
ments of  others,  as  well  as  of  that  which  he  himself  hath 
given. 

But  supposing  the  case  new^  and  that  for  the  first  time 
he  delivers  his  opinion  upon  the  point  of  law  that  is  made 
in  the  argument,  or  arises  from  the  case,  hov/  is  it  as  to  his 
right  to  continue  his  dissent  from  the  majority  of  the 
court,  as  he  now  will  discover  it  to  be.  His  continuing  to 
dissent  v/hen  the  question  again  arises,  must  be  subject  to 
the  like  consideration,  as  to  the  advantage  of  certainty  in  the 
law  and  judicial  proceedings.  It  is  a  principle  that  in  all 
collective  bodies  in  a  republican  government  the  majoritif 
shall  ifovern  ;  and  where  a  decision  is  not  clearly  contrary 
to  natural  reason  and  public  policy,  much  more  where  it 
stands  indifferent,  it  will  be  his  duty  to  concede,  even  where 

M 


90  Law  MiscELtANtES. 

it  depends  upon  the  construction  of  a  statute,  the  ptesUtnp* 
tion  to  himself  being   that   he  has  erred;    and  he  will  rest 
until  the  legislature  shall,  by  a  declaratory  law,  explain  their 
own  meaning.     But  I  take  it  he  has  a  right,  in  law  atid  con- 
science,  subjt*ct  to  the  considerations  aforesaid,  to  stick  ttf 
his  opinion,  in  all  cases;  because  by  anew  judge  coming  on 
the  bench,  the  judgment  may  be  in  favour  of  his  decision. 
By  maintaining  his  dissent  also,  the  attention  of  the  legisla- 
ture may  be  atiracted  to  settle  the  principle,  Avhether  of  law 
or  of  construction.     This  the  legislature  have,  in  many  cases, 
done,  though  it  will  be  at  all  times  a  matter  of  the  most  de- 
licate  interference.      But    as   this   is  the    ultimate   appeal, 
where  judges  in  the  court  of  the  last  resort,  are  divided,  it 
ma)'  seem  necessary.     Hence  it  may  be  seen  that  it  will  be- 
hoove the  legislature  of  a  free  people  to  read  the  judicial  re- 
ports, and  to  make  themselves  acquainted  with  the  construc- 
tion put  upon  these  acts  by  the  judiciary,  with  a  view  either" 
to  declare  the  law  as  they  intended  it,  or  to  repeal,  or  to  sup- 
ply.    How  is  it  that  the  members  do  not  direct  themselves 
to  be  furnished  with  the  state  reports  that  may  be  published, 
during  the  year,  at  every  commencement  of  their   session  ? 
and  this  at  the  expence  of  the  public,  whom,  by  this  means, 
they  may  be  the  better  able  to  serve.     This  would  be  an  en- 
couragement  to    reporters,    by   an    increase  of   the  emolu- 
ment  arising    from   the    sale.     The  same   officers  that   are 
directed  to   b?  furnished  with  the  acts  of  assembly,  might 
be  directed   to  be   furnished   with   these    also.       For  judi- 
cial  comments  on   the   acts   of  assembly    by    the     several, 
courts,  are    necessary    to    be  known,    in    order    to    disco- 
ver what  is  defective  in  them,  or   needs  amendment.     Such 
encouragement  to  reporters  would  be  unexceptionable.  For  it 
is  a  question  whether  an  appointment  by  a  fixed  salary  would 
be  advisable.     An   experiment  of  this  kind  was  made  at  an 
early  period,  in  what  were  called  the  year  books,  or  booJ^s  of 
tertns  and  years.     These  are  said  to  be   so  called,   because 
thty   were  published  annvally  from  the  notes  of  certain  per- 
sons v/ho  were  paid  a  certain  stipend  by  the   crown  for  the 


Law  Mis:^ellanies.  91 

eraployment.  This  from  the  beginning  of  the  reiyn  of  Ed.  II ; 
and  was  continued  until  in  the  reign  of  Hen.  VIII.  When, 
says  Reeves,  414,  "  The  opinion  of  this  establishment  was  al- 
tered, and  it  was  thought  more  advisable  to  trust  to  the  ge- 
neral inclination  discovered  in  private  persons  to  take  notes, 
who,  probably,  from  a  competition,  would  do  more  towards 
rendering  this  department  perfect,  and  useful,  than  any  temp- 
tation from  a  fixed  salary''''  But  Blackstone  on  this  subject, 
expresses  himself  in  the  following  manner,  1  Com.  71.  "  It 
is  much  to  be  wished  that  this  beneficial  custom  (re- 
porters with  fixed  salaries)  had  under  proper  regulations  been 
continued  to  this  day.  For  though  King  James  the  1st  at 
the  iastmce  of  lord  Bacon,  appointed  two  reporters,  with  a 
han'lsome  stipend  for  the  purpose  ;  yet,  that  wise  institution 
was  soon  neglected  ;  and  from  the  I'eign  of  Hen.  VUI.  to  the 
present  time,  this  task  has  been  executed  by  many  private 
and  contemporary  hands,  who,  sometimes,  through  haste 
jind  inaccuracy ;  sometimes  through  mistake  and  want  of 
skill,  have  published  very  crude  (perhaps  contradictory)  ac- 
counts of  one  and  the  same  determination." 

The  decision  of  a  court  is  but  evidence  of  what  the  law 
is  ;  and  a  report^  is,  but  evidence  of  the  decision^  with  the 
reasons^  if  any  are  given.  The  xueig'ht  of  the"  evidence 
will  depend  upon  the  supposed  ability  of  the  reporter.  It  is 
of  great  moment  therefore,  that  this  evidence,  be  the  best  in 
the  nature  of  the  case  that  can  be  got ;  though,  in  the  n  uure 
.of  things,  it  can  be  but  imperfect,  not  only  from  the  reporter 
misconceiving  what  is  delivered  ;  but  also  from  the  not  not- 
ing as  quickly  as  the  words  are  delivered  by  tlie  judge,  which 
is  impossible,  and  therefore  a  great  deal  inust  beoiiitted  in 
point  of  ?^^/z?ica/ expression  at  least;  and  by  that  moans  the 
scase  may  be  lost,  or  impaired.  It  is  not  practicable  to  fol- 
low closely  what  is  delivered,  unless  by  profession  il  sienogra- 
pliers,  or  short- hand  writers. 

By  an  act  of  24th  Feb.  1806,  it  is  provided,  that,  "  In 
all  cases  in  which  the  judge  or  judg-s  holdi  ig  the  supr;  me 
COiirt ;  courts  of  nisi  prius  circuit  court,  or  court  of  common 


93  Law  Misckllanies. 

pleas,  shall  deliver  the  opinion  of  the  court,  if  either  partij^ 
by  himself  or  counsel  requires  it,  it  shall  be  the  duty  of  the 
said  judges  respectively  to  reduce  the  opinion  so  given,  with 
their  reasons  therefor  to  writing,  and  file  the  same  of  re- 
cord in  the  cause."  It  will  follow  from  this  that  a  judge 
must  be  able  to  xvrite.  By  the  common  law  this  was  not  ne- 
cessary. The  prothonotarif  was  the  officer  of  the  court  who 
alone  was  expected  to  write  j  or  clerks  of  the  several  courts. 
In  the  case  of  a  i/ill  of  exceptions  given  by  the  statute  13 
Ed.  1.  c,  31.  the  judge  could  only  be  called  upon,  to  put  to 
his  seal,  not  to  write  his  name.  But  the  arresting  the  trial 
tintil  an  opinion  can  be  written  out,  is  inconsistent  with  the 
despatch  of  business.  And  a  bare  opinion  with  the  reasons 
of  it,  without  a  statement  of  the  facts  on  which  it  is  founded, 
and  on  which  the  law  arises,  can  be  of  little  moment.  It  is 
the  business  of  a  reporter  to  give  these  facts  j  for  the  calling 
on  a  judge  to  do  this,  would  still  more  encrease  his  clerk  du' 
ties^  and  engross  his  time.  The  duty  enjoined  by  this  act 
is  inconsistent  with  the  facidty  of  thinking  to  advantage,  and 
the  powers  of  judging.  For  it  is  impossible  for  one  to  be  a 
scrivener,  and  at  the  same  time,  to  have  his  mmdi  free  to  think 
only.  The  manual  occupation  will  interfere  with  the  exer- 
cise of  intellect.  It  is  a  great  innovation  upon  the  province  of 
the  judge  ;  and  I  do  not  set  it  down  under  the  head  of  an 
improvement  in  judicial  trials.  Were  it  not  that  it  is  a 
right  under  the  act,  which  is  but  sparingly  used  by  the  party 
or  counsel,  it  would  be  impossible  to  get  through  a  trial  in 
any  reasonable  space  of  time.  In  fact  it  is  seldom  used  un- 
less when  a  point  is  decided  against  the  counsel,  and  they 
take  revenge  by  giving  the  judge  trouble. 

If  the  act  is  not  repealed,  I  would  suggest  a  small  amend- 
ment to  it  by  way  of  supplement ;  "  That  it  shall  be  the  du- 
ty of  the  prothonotaiy  to  take  down  the  opinion  of  the  judge 
as  delivered,  with  the  reasons."  This  would  delay  business  j 
but  it  would  relieve  the  judge  from  the  drudgery  of  the  chi- 
rograpber,  and  give  the  chance  of  a  fairer  handwriting  to 
be  filed.  For  a  prothonotary  has  his  name  and  his  office 
fronri  the  idea  of  being  a  scribe,     It  might  be   enjoined  also 


Law  Miscellanies.  93 

on  the  party  or  the  counsel  in  the  cause  to  be  the  amanuensis 
to  prepare  what  was  to  be  recorded,  by  way  of  assisting  the 
prothonotary, or  clerk  if  he  should  require  it;  or  the  judge 
should  direct.  This  would  be  some  check  on  the  calling 
for  opinions,  and  the  reasons  of  them.  It  may  be  said  the 
judge  is  not  expected  to  take  time  for  this  clerkship  in  the 
hurry  of  the  trial,  but  in  his  chambers  at  the  inn,  or  private 
lodgings,  when  on  the  circuit.  But  it  must  be  done  on  the 
spur  of  the  occasion;  for  the  jury  cannot  go  out  till  they 
hear  it ;  and,  it  is  on  a  charge  to  them,  that  the  opinions  and 
the  reasons  are  most  usually  required.  If  it  is  on  a  demur- 
rer, or  in  arrest  of  judgment,  the  objection  in  part^  remains 
as  to  time ;  but  as  to  the  incongruity  of  clerkship  with  the 
office  of  a  judge,  it  exists  altogether.  Even  in  term  it  is  a 
heavy  labour  to  be  bovmd  to  make  out  opinions  and  reasons 
in  all  cases.  The  greatest  dunce  of  a  judge  has  the  best 
chance  ;  for  such  generally  like  to  write  ;  for  the  faculty  oi 
thinking  is  not  familiar  to  them. 

By  an  act  of  the  5th  March,  1812,  "  where  more  than  one 
exception  is  taken  or  point  made  in  any  court  of  common 
pleas,  or  other  court  of  inferior  jurisdiction,  and  the  same 
has  been  duly  removed  to  the  supreme  court  for  their  deci- 
sion, the  judges  of  the  supreme  court  are  enjoined,  and  re- 
quired to  give  their  opinion  on  every  point,  and  exception  ta- 
ken and  signed  in  the  inferior  court,  which  opinion  so  deli- 
vered, if  required  by  either  plaintiif  or  defendant,  or  any 
third  person  interested  in  the  event  of  the  cause^  shall  be  filed 
in  waiting  by  the  said  judges,  with  the  prothonotary  of  the 
proper  district."  I  approve  of  this  act  so  far  as  it  calls  for 
an  opinion  on  every  point  and  exception  taken  in  the  court  be- 
low. But  so  far  as  enjoins  X^vq  filing  in  xvriting^  it  is  liable 
to  the  objection,  and  would  seem  to  require  the  amendment, 
already  stated ;  more  especially  as  the  right  of  calling  for 
the  opinion  to  be  filed  is  extended  to  third  pcrsori.'?^  not  par- 
ties to  the  action,  but  who  may  conceive  themselves  some- 
xvay  interested  in  it. 


"f4  Law  Miscellanie«. 

"  Statutes  also  are  either  declaratonj  of  the  common  law,  or 
"  remedial  of  some  defects  therein."   1  Bl.  Com.  86. 

By  an  act  of  assembly  of  the  21st  March,  1806,  it  is  pro- 
vided "  that  in  all  cases  where  a  remedy  is  provided  or  duty 
enjoined ;  or  any  thing  directed  to  be  done  by  any  act  or 
acts  of  assembly  of  this  commonwealth,  the  direction  of  such 
acts  shall  be  strictly  pursued,  and  no  penalty  shall  be  inflict- 
ed, or  any  thing  done  agreeably  to  the  provisions  of  the  com^ 
•mon  law,  in  such  cases,  further  than  shall  be  necessary  for 
carrying  such  act  or  acts  into  effect."  It  could  not  be  the 
meaning  of  the  legislature  that  remedial  statutes  should  have  a 
strict  construction  contrary  to  the  principle  of  law  in  constru- 
ing statutes;  which  is,  that  rem.edial  statutes  must  be  libe^ 
rally  construed,  in  advancement  of  the  remedy ;  but  the  ne- 
gative words,  in  this  act  of  assembly,  must  be  restrained  to 
an''exclusionof  what  it  negatives,  a  prosecution  at  common 
law,  and  a  penalty  derived  from  thence  ;  and  this,  whether 
the  provision  of  the  act  shall  be  to  provide  a  remedy  or  en- 
Joi?i  q  duty. 

It  is  a  rule  of  construction  that  an  affirmative  statute  does 
not  take  away  the  common  law ;  and  a  party  may  make  his 
election  to  proceed  upon  the  statute,  or  at  the  common  law. 
£.  Wil.  Bac.  377.  It  was  with  a  view  to  meet  this  rule  that 
the  act  of  assembly  in  this  case  has  given  a  negative  to  such 
construction.  It  had  been  done  in  particular  cases,  where 
it  was  not  the  will  of  the  legislature  that  the  party  should  have 
an  election  to  proceed  at  common  law  or  on  the  statute  ;  but 
this  was  intended  as  a  general  sweeping  w^-^afrve  in  all  cases, 
in  order  to  supercede  the  necessity  of  particular  provisions. 
r  take  it  therefore  that  a  great  change  of  the  law  has  been 
made  in  this  respect  in  Pennsylvania,  but  that  it  has  no  refer- 
ence to  the  rule  of  construing  remedial  statutes  hberalhj  in 
contradistinction  from  the  rule  of  a  *<rzc#  construction  of  pe- 
i^al  statutes. 


Law  MiscEttANiES.  W 

I  BL  Com.  141. 

There  is  no  compensation  for  the  *5z7  taken  for  the  use  of 
roads  in  Pennsylvania*     6  per.  cent,  or,  6  acres  in  the  hun- 
dred acres,  were  allowed,  in  the  proprietary  grants  ;  so  that, 
in  a  survey  of  300  acres,  18  were  allowed  ;  hence  it  is  that 
the  surveys  are  made,  and  returned  into  the  surveyor  gene- 
ral's  office  as  containing  300  acres,  and  alloxvance.  The  demesne 
as  of  fee ;  or  the  jus  proprietatis,  or  absolute  ownership  of 
the  whole  318  acres,  is  in  the  grantee,  but  subject  to  a  right  of 
the  public  in  the  whole  quantity,  to  take  at  any  time  an  occu- 
pancy for  the  use  of  roads  J  or,  rather,  in   consideration  of 
this  allowance,  there  is  an  interest  in  the  public  for  the  laying 
out,  and  the   occupying  the   ground  for  what  i-oads  it  may 
deem  necessary  to  lay  out  through  it.     In  no  case  can   it  be 
supposed  that  more  than  18  acres  can  be  laid  out  and  occupied 
for  this  use  ;  nor  perhaps  more  than  ^d  of  that  quantity.  Two 
roads  of  33  feet  or  2  perches,  the  usual  width,  crossing  the 
tract  at  right  angles,  or   carried  through  it,  in  any  direction, 
Would  not,  by  my  calculation,  take  up  more  than  6  acres  and 
little  more  than  ^^th.  And  it  must  be  rare  if  ever  more   than 
2  roads  of  this  width,  or  narrower  roads  in   proportion  to 
these,  can  belaidoutthroughany  tractof  318  acres.  An  under 
purchaser  takes  subject  to  this  right  of  the  public  to  lay  out 
roads.     It  may  happen  that  a  purchaser  of  a  small  quantity 
may  have  all  that  is  taken  for  roads  to  pass  through  his  lot, 
but  he  cannot  complain.     Tht  public  are  bound  to  make  com- 
pensation only  for  the  improvements  on  the  ground,  a  build- 
ing pulled  down  which  is  in  the  way  of  the  road  laid  out; 
Orchard  trees,  or  grass  growing  on  meadow  ground  ;  and  this 
at  a  valuation.     But   trees  that  have  not  been  planted,  but 
in  their  natural  state  growing  in  a  wood,  are  not  to  be  vulu«! 
cd ;  but  may  be  cut  down,  or  taken  for  bridging  and  other  uses 
in  the  making  the  road,  in  the  same  manner  as  stones  or  eardi. 


96  Law  Miscellanies. 

'  And  therefore  he  (the  representative)  is  not  bound,  like  a 
<  deputy  of  the  United  provinces,  to  consult  with,  or  take  the  ad- 

*  vice,  of  his   constituents  upon  any  particular  point,  unless  he 

*  himself  thinks  it  proper  or  prudent  so  to  do."     1  Bl.  Com.  161. 

*  The  person  chosen  seems  to  be  strictly  the  delegate  of 

*  those  by  whom  he   is  chosen,  and  bound  by  their  instruc- 

*  tions  whenever  they  think  proper  to  exercise  the  right.  If 
'  the  maxim  be  true  that  all  power  is  derived  from  the  peo- 
'  pie  ;  that  magistrates  are  their  trustees  and  servants,  and 

*  at  all  times  amenable  to  tnem  for  their  conduct,  it  seems 
'impossible  to  withhold  our  assent  from  the  proposition, 
'  that  in  a  popular  government  the  representative  is  bound 

*  to  speak  the  sense  of  his  constituents  upon  every  subject, 

*  where  he  is  informed  of  it.     The  difficulty  of  collecting  the 

*  sen'ie  of  the  people  upon  any  question^  forms  no  argument 

*  against  the  right  to  express  that  sense  when  they  shall  think 
'^proper  so  to  do.''     Tucker,  vol-  Lapp.  193. 

In  a  democracy  where  the  whole  people  convene  for  the 
purpose  of  deliberating  with  regard  to  a  general  law,  or  pub- 
lic measure,  no  one  is  supposed  to  come  forward  with  an 
opinion  already  formed,  and  7iot  to  be  altered;  for  that  would 
be  inconsistent  with  the  advantage  to  be  derived  from  a  unit- 
ed deliberation.  The  principle  remains  the  same  where  the 
whole  do  not  actually  convene ;  but  the  number  is  reduced 
by  representation.  For  it  is  equally  inconsistent  with  the 
advantage  of  united  deliberation  that  any  of  the  representa- 
tives come  forward  but  with  a  mind  open  to  the  observations 
of  others.  It  is  inconsistent  with  the  rights  of  all  for  any 
one  not  to  be  free  to  listen  to  the  consideration  of  the  inte- 
rest of  the  whole.  It  is  from  a  communication  of  sentiments 
in  a  convention  of  the  whole,  that  what  shall  be  considered  to 
be  the  interest  of  the  whole,  can  alone  be  collected.  In  thiff 
case,  have  the  constituents  who  are  not  convened  a  right  to 
foreclose  the  ear  and  understanding  of  the  representative  ?  In 
that  case  the  deliberation  is  supposed  to  be  by  the  constitu- 
ent ;  and  the  expression  by  the  representative. 

But  taking  it  that  the  deliberation  is  at  home,  how  is  the. 
information  of  this    to  be  communicated  to  the  representa- 


Law  Miscellanies.  W 

live ;  what  means  are  provided  to  collect  the  sense  of  the 
community  J  or  to  express  it.  There  are  laws  securing 
free  and  equal  proceedings  in  the  election  of  the  representa- 
tive ;  but  no  provision  for  the  taking  the  sense  of  the  people, 
and  sending  it  forward..  The  truth  is  the  doctrine  is  a  fal- 
lacy in  theory  :  it  takes  for  granted  what  does  not  exist, 
that  the  whole  people  have  convened  at  home,  and  delibe- 
rated ;  for  in  that  case,  doubtless,  the  representatives  of  the 
whole  would  be  bound  by  the  whole. 

For  if  this  is  not  taken  for  granted,  it  wull  follow,  that 
it  must  be  contended,  that  the  district  sending  a  particular 
representative  has  a  right  to  determine  on  a  matter  of  ge- 
neral interest,  independent  of  all  conference  with  the 
other  districts  ;  and  that  this  is  expedient  and  compatible 
irith  the  public  safety.  But  it  can  only  be  in  the  represen- 
tative body  that  the  sense  of  one  district  can  be  supposed 
to  be  known  to  another.  For  as  to  what  can  be  collected 
otherwise,  there  is  no  certain  medium  of  sommunication. 
Of  the  right  of  the  constituent  to  communicate,  to  instruct, 
to  remonstrate  there  is  no  question.  It  is  the  right  to 
eontrouly  even  supposing  the  sense  of  the  district  to  be 
known,  that  is  to  be  controverted.  Under  the  constitutions 
of  these  states,  where  elections  are  for  so  short  a  period  ; 
it  is  not  of  so  much  moment  what  may  be  considered  the  ab- 
stract principle  ;  as^  271  practice^  the  sense  of  the  particular  por- 
tion of  the  community  from  whence  the  representative  is  cho- 
sen, will  govern  him,  so  far  as  he  is  able  to  collect  it;  and  it 
will  require  more  fortitude  ;  perhaps  I  might  say  more  vir- 
tue, than  falls  to  the  share  of  most  individuals,  to  resist 
the  popular  and  temporary  impulse.  He  will  be  a  knave  or 
a  hero  that  can  do  it ;  that  is,  he  will  have  bartered  his 
duty  for  his  profit ;  or,  he  will  be  a  patriot,  of  self-denial, 
willing  to  sacrifice  himself  for  the  people.  But  I  do  not 
think  that  the  danger  of  such  possible  bartering,  is  such  as 
will  warrant  the  denying  a  representative  the  right  to  think 
for  those  at  home  on  a  question  v/hich  respects  the  general 
interest,  freely  and  unembarrassedly  as  he  would  for  him- 
self, subject  only  to  instructions  as  influencing  his  delibe- 
N 


38  Law  Miscellanies. 

rations,  but  not  as  absolutely  controlling  his  vote.  But  in- 
dependent of  the  expediency  I  rest  the  argument  on  the 
ground,  that  it  is  the  republican  principle  of  representative 
government,  that  every  individual  is  presumed  to  advise 
with  another  before  he  makes  up  an  opinion  on  what  con- 
cerns the  whole ;  for,  *'  in  a  multitude  of  counsellors  there  is 
safety;"  and  as  every  individual  constituent  cannot  be  suppos- 
ed to  advise  with  another  in  a  large  community,  it  must  be  in 
that  body  where  the  number  is  reduced  by  representation, 
that  this  advisement  can  be  presumed  to  take  place.  It  is 
therefore  contrary  to  all  principle  of  right  or  expedience, 
that  the  constitutent  out  of  doors  should  undertake  to  con- 
trol the  deliberations  of  those  who  constitute  the  represen- 
tative  body. 

This  principle,  if  correct,  in  the  case  of  a  representative 
to  the  legislature  of  a  state,  equally  applies  in  the  case  of  a 
representative  to  the  general  government ;  and  a  fortiori, 
.where  the  election  is  not  in  the  primary  assemblies  of  the 
people,  but  by  the  representatives  of  the  state ;  as,  in  the 
election  of  a  senator  of  the  United  States.  For  these  hav- 
ing elected  the  senator  are  functi  officio  j  and  he  is  not  the 
representative  of  this  secondary  body,  but  of  the  people  ;  and 
it  is  from  that  source  that  instructions  must  come  if  they 
are  to  hind.  For  it  would  be  incongruous,  that  instruc- 
tions should  come  from  the  primary  assemblies  to  the  re- 
presentative in  one  house  of  congress,  and  from  the  secon- 
dary body  to  the  representative  in  another,  which  might  be 
discordant  and  draw  a  different  wa}^.  But  still  I  recur  to 
the  principle  which  is  at  the  bottom  of  all  this,  that  the  de- 
liberative body  above  has  an  interest  in  the  free  judgment 
of  all  the  members,  who  ought  not  to  be  supposed  to  come 
there  ;  not  with  their  ears  in  their  feet,  it  is  true  to  use  the 
language  of  Aristippus  speaking  of  Dionysius,  but  with 
their  ears  in  their  pockets  ;  or  with  the  papers  in  their  desks. 
It  is  better  that  even  the  interest  of  the  whole  should  be 
mistaken  in  a  particular  case,  than  that  the  advantage  of  a: 
free  and  united  deliberation   should  be  lost;  the  combined 


Law  Miscellanies.'  99 

wisdom  of  the  whole  being  controlled  by  the  ideas  of  a 
part,  having  no  opportunity  of  taking  a  near  view  of  the 
question ;  and  accompanied  with  such  assistance  as  must 
be  presumed  to  be  derived  from  the  reason  and  deduction 
of  others.  And  such  is  the  self-love  of  man,  and  the  de- 
sire of  present  ease  or  convenience,  that  the  danger  docs 
fiot  arise  from  resisting,  but  from  yielding  to  the  wishes  ot 
the  part  by  whom  the  representative  is  immediately  elected: 
under  the  American  constitutions  particularly,  where  the  in- 
dividual can  seldom  find  a  temptation  of  honour  or  profit 
to  swerve  from  the  popular  inclination  of  the  moment ;  but 
in  most  cases  must  be  actuated  by  what  he  considers  as  the 
sal  us  populi  or  good  of  the  whole.  Where  such  sacrifice 
of  popularity  is  made,  the  prima  facie  evidence  always  is, 
that  of    virtue^  if  not  of  wisdom. 

Provisions  against  the  possibility  of  a  representative  con- 
sulting self-interest  contrary  to  his  sense  of  the  general 
good,  in  subservience  to  partial  views,  must  be  found,  not 
in  the  restraint  of  instructions,  but  in  the  shortness  of  the 
period  of  his  delegation,  and  the  being  incapable  of  receiv- 
ing appointments  under  the  government,  for  a  period  aftCF 
the  expiration  of  his  term.  These  provisions  if  not  in  the 
constitution  can  be  made  by  law. 


"  As  to  the qualificauous  otthe  electors."  1  BL  Com.  172, 

I  am  an  advocate  for  the  principle  of  universal  suffrage  ; 
for  I  can  see  no  consistency  in  any  limitation,  but  what  is 
f  ersonal  a.ndrespectii  age,  and  residence.  But  this  delight- 
ful principle  of  equality  cannot  be  tolerated  without  endan- 
gering liberty,  unless  the  stays  or  restraints  upon  public  voli- 
tion are  proportionably  powerful ;  for  the  mind  of  man  like 
the  water  of  the  ocean  is  subject  to  sudden  and  great  agita- 
tion. The  breath  of  opinion  like  the  atmosphere  blows  upon 
it,  not  v/ith  an  equable  and  steady  breeze  ;  but,  in  flaws  and 
ttrong  winds*    In  proportion  a§  the  whole  mass  is  acted  oij 


3100  Law  Miscellanies. 

and  can  be  put  in  motion,  the  waves  are  the  more  tremendous. 
The  stays,  or  restraints  are 

1.  The  acting  by  representation;  for,  even  in  a  small 
etate,  where  the  whole  can  convene,  this  is  found  a  great  help 
and  contributes  to  the  wisdom  of  deliberation.  For  though 
"  in  a  multitude  of  consellors  there  is  safety,"  yet  this  is  not 
in  the  ratio  of  the  number  of  heads,  that  consult,  but  of  the 
number  out  of  which  to  select,  and  which  gives  the  greater 
chance  of  selecting  men  of  understanding. 

2.  The  division  of  power  in  the  representation ;  the 
law-making,  the  law-expounding,  and  the  law-executing  pow- 
er. This  we  have  under  our  Constitution,  in  the  legislative 
bodies,  the  judiciary,  and  the  governor. 

3.  The  subdivisonof  the  law-making  power,  immediate- 
ly emanating  from  the  whole,  and  a  representation  emanat- 
ing from  the  parts.  This  we  have  in  the  qualified  negative 
of  the  governor,  and  in  the  district  delegates. 

4.  A  subdivision  of  the  representation  from  the  parts, 
in  order  to  produce  deliberation,  and  obstruct  combination  : 
and,  under  this  subdivision,  a  shorter  period  of  revocation 
in  one  body  with  a  view  to  secure  fidelity  to  the  voice  of 
the  constituent ;  in  the  other  a  longer  period,  in  order  to 
lessen  fear  in  the  delegate  of  acting  according  to  his  own 
judgment  in  opposition  to  temporary  impulse,  and  popular 
paroxism  :  this  we  have  in  the  tv;o  branches,  the  annual 
branch,  and  the  quadrennial  senate. 

I  am  not  about  to  write  a  comment  on  our  constitution ; 
but  it  will  be  seen  that  it  possesses  all  these  restraints  and 
stays  ;  and  venture  to  assert  that  with  the  principle  of  tini- 
versal  suffrage^  its  date  would  be  short  without  them.  For 
even  where  a  qualification  of  property  is  introduced  as  a  stay, 
and  citizens  of  a  certain  real  estate  only  have  the  rights  of 
suffrage,  yet  a  government  founded  on  opinion,  is  subject  to 
internal  commotion,  and  is  with  great  difficulty  preserved  in 
a  state  of  freedom  :  It  tends  to  anarchy  or  monarchy  with  al- 
ternate heel  until  it  goes  down  in  despotism. 

Our  executive  springs  wholly  from  the  stock ;  it  rises  on 
th^  basis  of  the  whole  people.     IJnzverr-al  suffrage  raises  it  j 


Law  Miscellanies.  J01 

and  in  this  respect  our  government  is  as  democratic  as  is 
possible  short  of  the  people  exercising  the  executive  power 
immediately  by  themselves  which  in  a  great  community  is 
impracticable.  Nevertheless  we  have  seen  a  struggle  to 
break  in  upon  this  part  of  our  constitution  by  the  local  dele- 
gates, by  taking  away  the  appointment  of  officers  from  the 
people  through  the  state  representative,  and  exercising  it 
themselves. 

The  third  and  intermediate,  the  law  expounding  power, 
is  but  one  remove  from  the  immediate  appointment  of  the 
whole  people,  and  to  a  qualified  extent,  is  in  the  power  of  the 
parts  in  the  legislative  body. 

All  this  distribution  is  the  result  of  much  thought  and 
long  experience  in  the  affairs  of  men.  Our  constitution  has 
been  framed  with  great  deliberation. 

The  tenure  of  judicial  office  has  been  a  subject  of  com- 
plaint. The  stay  here  may  support  men  who  ought  to  be 
displaced,  but  there  may  be  occasion  for  it  when  the  attempt 
may  be  to  bear  down,  and  remove  those  v/ho  ought  not  to  be 
displaced.  The  constitution  is  not  made  for  a  day.  But 
the  will  of  the  people  ought  at  all  times  to  have  effect.  But 
the  thing  is  to  get  at  the  will  of  the  people  ;  and  even  if  they 
could  assemble  as  one  man  to  express  their  will,  there  is  such 
a  thing  as  rashness  in  a  multitude.  They  would  find  it  ne- 
cessary to  restrain  themselves  by  taking  time  to  deliberate. 
Perhaps  to  provide  that  in  the  case  of  those  who  administer 
their  laws  which  subjects  to  much  odium  ;  and  requires  pro* 
portionable  fortitude,  it  should  be  necessary  that  in  the  case 
of  a  change  two  thirds  among  themselves  should  be  agreed. 

It  will  be  said  this  is  a  new  idea,  that  the  governor  is  the 
immediate  and  only  immediate  representative  of  the  people. 
Is  it  not  the  fact  ?  The  local  delegate  is  the  actual  reprtsv  nia- 
tive  of  a  district,  and  it  is  in  contemplation  of  law  only  that 
he  is  the  representative  of  the  state.  He  is  chosen  annually, 
because  it  can  conveniently  be  done.  The  governor  is  cho- 
sen with  the  solemnity  of  a  triennial,  and  general  election. 
He  is  a  representative  elected  with  more  concern,  and  is  of 
longer  duration,     Ephemeral  productions  in  nature,  are  less 


1Q2  Law  Miscellanies^ 

the  objects  of  attention,  than  those  which  are  of  more  impor- 
tance in  the  scale  of  being,  and  of  greater  longevity.  Not 
that  I  mean  to  undervalue  the  local  delegate,  and  virtual  re- 
presentative. He  may  be  in  fact  the  far  superior  personage  ; 
but  it  is  in  a  political  point  of  view,  and  representative  capa- 
city, that  I  consider  the  characters.  But,  in  proportion  as  a 
man  is  removed  from  local  interests,  his  horizon  is  enlarged, 
and  his  mind  embraces  the  interests  of  the  whole  community. 
The  local  delegate  is  charged  with  the  accomplishment  of 
local  objects,  and  for  these  he  is  under  the  necessity  oftea- 
times  of  bartering  his  vote  upon  a  general  question.  At  all 
events  he  is  under  the  temptation  of  doing  it.  The  general 
representative  is  charged  with  the  interests  of  the  whole, 
and  has  no  local  objects  to  accomplish.  In  this  particular 
alone,  independent  of  all  others,  the  constitution  presents  a 
noble  scheme  of  wisdom,  and  democratic  equality. 

It  is  contemplated  in  the  nature  of  the  case  that  an  op- 
position of  sentiments  will  arise  between  the  local  delegate 
and  the  general  representative.  As  is  natural  to  the  hu- 
man mind  it  may  produce  warmth,  and  mutual  accusations 
•f  a  mistake  of  the  true  interests  of  the  people.  Even  a 
contempt  may  be  alleged  and  contumelious  expressions 
adduced  as  a  proof  of  it.  But  it  is  to  the  conduct  that  a  wise 
people  will  look  for  the  proof  of  this.  Does  the  man  slight 
their  interests  by  neglecting  his  duty  ?  This  will  be  the  sub- 
ject of  enquiry  with  rational  men,  when  it  is  to  their  pas- 
sions, and  not  to  their  understandings.  Nay,  when  the  re- 
currence is  to  this  it  is  a  presumption  that  passion  prompts 
the  movers  more  than  reason,  or  that  self-love  in  some  shape 
is  at  the  bottom. 

Certain  it  is  that  the  whole  body  politic  have  not  the 
means  of  information  upon  a  great  scale.  It  is  in  contem- 
jplation  of  law  only  that  they  are  supposed  to  be  infallible, 
and  whatever  the  people  do  is  right.  Individuals  in  their 
respective  occupations  have  not  the  leisure  nor  the  opportu- 
•nity  to  investigate  great  questions.  It  is  the  part  of  a 
faithful  representative,  to  respect  the  rights^  but  to  distrust 
the  impulses  of  the  people. 


Law  Miscellanies.  103 

But  there  are  always  ingenious  men  who  will  wish  to  try 
their  hands  at  making  a  constitution,  and  the  passion  of  con- 
stitution-making will  not  be  satisfied  Avith  one  essay.  Hence 
it  is  that  no  constitution  will  be  lasting ;  and  there  is  such  a 
thing  as  a  habit  of  instability.  A  bone  that  is  often  out  of 
joint  is  not  easily  retained  in  the  socket. 

It  is  an  axiom  that  the  people  have  a  right  to  change 
their  constitution ;  and  a  majority   constitutes  the   people ; 
and  the  motion  towards  a  change   must  begin  somewhere. 
Hence  the  right  ©f  any  individual  to  propose  a  change.     An 
oath  to  support  the   constitution   is  subject  to  the  exercise 
of  this  right.  But  though  the  vote  of  a  ?najority  gives  the  right 
to  change,  yet  it  supposes  the  vote  of  every  one  to  be  taken  ;  and 
therefore  any  attempt  to  change  without  having  taken  the  pre-' 
vious  question,  convention  or  no  convention,  must  be  contrary 
to  oath   and   right  both.     The   existing  legislature  for  the 
time  being  would  seem  to  be  the  most  expedient  organ  of 
communication  with  respect  to  this   object,  who,  by  way  of 
resolution,  not  law,  for  they  have  no  authority,  could  fix 
upon  the  ways  and  means  of  taking  the  sense  of  the  people, 
and  this  ought  to  be  by  a    universal  vote  of  the  citizens 
qualified  to   vote,  and  not,   by  proposing  the  choice  of  re- 
presentatives in  a  convention  without  a  vote  by  the  whole 
people  on   the  previous  question.     Where  the  sense  of  the 
necessity  of  a  change   pervades   the   whole  community,  it 
may  not  be  attended  at  the  time  with  an  immediate  convul- 
sion ?  but   where   that  is  not  the  case,  it  may  produce  a  civil 
■war.     For  the  man  who   from  a  surprise   upon  him,  and 
exclusion  in  fact,  by   defect  of  ways  and  means  of  giving' 
him  an  opportunity  to  make  his  will  known,  is  not  bound  by 
what  is  done,  and  may  resist,  and   it  will  depend  upon  the 
event  whether  it  shall  be  stiled  a  rebellion^  or  a  revolution* 
The  taking  the  sense  of  the  people  thei'efore  by  the  signatures, 
sent  forward  to  the  house,  is  not  fair,  or  safe,  and  ought  not  to 
produce  more  than  the  devising  ways  and  means  to  take  the 
sense  of  the  people.    For  can  the  executive  authority  do  less 
than  to  issue  his  proclamation  against  a  convention  on  any 
^ther  ground,  and  in  case  of  its  taking  place,  calling  on  the 


104  Law  Miscellanies. 

civil  authority  and  militia  to  suppress  the  insurrection.  It 
would  be  his  duty,  and  on  his  oath  he  could  not  dispense 
with  it ;  and  if  in  this  respect  he  is  not  vigilant,  our  estab- 
lished governments  and  liberty  will  be  of  short  duration. 

All  the  greatness  of  man  is  derived  from  his  gregarious 
nature,  his  love  of  association  j  yet  of  all  things  how  diffi- 
cult to  retain  him  under  any  form  of  government  but  that 
which  of  all  others  is  the  least  favourable  to  his  happiness, 
and  the  great  improvement  of  his  nature.  Tyranny  in  some 
shape  he  will  have.  It  is  that  which  he  constantly  exclaims 
against ;  and  most  of  all  hates,  and  fears,  and  yet  as  if  un- 
der the  dominion  of  witchcraft,  he  will  run  into  his  em- 
braces. This  mighty  giant,  this  monster  feeds  on  human 
flesh ;  and  yet  in  vain  you  warn  against  the  approaches  to 
his  den. 

We  will  suppose  that  a  revolution  is  brought  about, 
and  a  new  constitution  is  formed,  with  all  peace  and  quiet- 
ness. This  constitution  must  want  the  stays,  the  braces 
of  the  present ;  because  these  very  stays,  or  braces  are  the 
impediments  of  which  complaint  is  made,  and  which  has 
brought  about  the  revolution.  Will  not  that  occur  which 
has  always  occurred,  that  the  many  first,  the  few  next,  but 
in  a  short  time  the  one  will  govern  ?  Is  the  nature  of  mail 
changed  ?  Is  our  airless  elastic?  Or  is  there  a  spirit  in  the 
atmosphere  less  favourable  to  discord,  that  we  should  trust 
ourselves  more  than  experience  has  shewn  it  behoved,  where 
man  has  planted  himself  in  all  other  climates  and  countries? 

It  is  not  the  boy  that  applies  the  flambeau  that  causes 
that  mighty  burning.  Th"  inflammable  materials  of  the  city 
supply  food.  It  is  in  the  veins  of  the  timber  that  the  latent 
sparks  are  found  ;  that  the  flames  are  engendered,  and  burst 
out.  It  requires  no  talents  to  set  a  town  on  fire.  It  is  the 
work  of  audacity  alone. 

Whence  is  it  that  some  men  have  become  great  upon  the 
earth  ?  Some  by  forming  establishments,  and  doing  good ; 
Others  by  the  greatness  of  the  mischief  they  have  accom- 
plished. Rarely  do  even  the  actors  find  their  account  in 
what  is  done.     Ingratitude  is  in  the  way  of  the  good  man,  . 


Law  MlSCEttANIES»  105 

and  is  the  reward  of  all  his  labours.  Vain  glory  or 
the  love  of  spoil  prompts  the*  bad,  but  it  is  in  the  nature  of 
things  that  his  own  mind  torments  him  at  the  present,  and 
the  revenge,  and  execration  of  mankind  pursues  him  at  the 
last. 

It  behooves  men  to  weigh  well  before  they  begin  a  revo- 
lution. It  may  terminate  short  of  a  civil  war,  with  great  dis- 
cretion, and  wise  conduct;  but  a  great  deal  is  put  to  risk, 
-legislators  have  been  at  all  times  aware  of  the  unstable  dis- 
position of  the  multitude,  and  the  use  that  is  made  of  it  by 
ambitious  men.  Solon  exacttd  an  oath  from  the  Athenians, 
not  to  change  his  laws,  for  at  least  a  period.  Lycurgus,  of 
the  Lacedemonians  that  they  would  preserve  his  system, 
until  his  return,  determining  previously  never  to  return.  The 
legislator  of  the  Jews  au  inspired  lawgiver,  saAV,  in  the  nature 
of  his  people,  the  propensity  to  change.  He  denounced  cur- 
ses on  those  who  should  subvert  his  institutions. —  "  Cursed 
let  them  be  in  their  basket  and  cursed  in  their  store." 

Executive  patronage  under  our  constitution,  is  thought 
to  put  the  Governor  beyond  the  reach  of  the  people  ;  that 
when  he  has  fenced  himself  with  appointments  under  him,  it 
is  difficult,  if  not  impossible  to  prevent  his  re-election.  So 
far  is  this  from  being  the  fact,  that  it  is  his  appointments 
which  give  him  all  his  trouble,  and  lay  the  foundation  of  an 
opposition.  We  need  not  recur  to  a  saying  of  Lewis  14th 
to  prove  this  ;  that  when  he  had  conferred  an  office  or  an  ho- 
nour, "  he  made  many  dissatisfied,  and  one  man  xingratefuV^ 
He  is  ungrateful,  either  because  it  is  the  nature  of  an  obli- 
gation to  produce  ingratitude ;  or  because  the  man  thinks 
himself  injured  in  getting  less  than  his  due.  If  I  am  toad- 
minister  a  government,  and  wish  a  continuance  in  office,  or- 
to  escape  enmities,  let  me  have  no  appointments  in  my  gift. 
It  is  invidious  to  select  the  qualified,  or  bestow  emoluments. 
What  a  host  does  not  a  Governor  raise  up  against  himself, 
in  the  exercise  of  such  a  trust ;  there  can  be  but  one  man  in 
many  appointed  to  office  ?  and  yet  all,  or  most  expect  offices. 
Sa  blind  is  self-love  that  few  men  suspect  their  incapacity, 
<jr  cull  in  question  their  desert. 

I  will  not  say ;  it  would  be   unjust  to  say  that  there  are 


l06  Law  Miscellanies.  ' 

not  cases  where  the  disapprobation  of  an  executive  measure 
may  not  spring  from  the  purest  motives  of  disinterested  pa- 
triotism. But  I  mean  only  t6  illustrate  this  point  that  the 
power  of  conferring  offices  carries  with  it  more  to  affect  than 
to  protect ;  and  this  depending  on  the  nature  of  things  when 
so  many  are  to  expect  and  so  few  to  receive. 

It  is  evidently  the  general  understanding  of  all  who  ob- 
serve the  springs  of  action  in  political  characters,  that  their 
antipathies  have  their  origin  in  something  personal.  This 
may  be  true  of  those  who  obtain  a  leading  in  political  affairs. 
But  doubtless  there  will  always  be  a  mass  acted  on  by  every 
one  of  these  to  an  extent  proportioned  to  his  influence,  and 
with  whom  there  is  no  intrinsic  motive  or  principle,  of  dis- 
appointment, or  hope.  Nevertheless  it  is  still  the  pique  of 
disappointed  ambition  that  in  most  cases  gives  the  first  im- 
pulse to  a  warm  agitator  who  sets  the  public  mind  in  mo- 
tion. Through  v'hom  is  the  voice  of  the  people  legitimately 
known  immediately  P  only  through  the  govern©r.  For  he 
alone  is  chosen  by  the  whole  people.  And  this  is  the  great 
glory  of  our  constitution  that  the  Avhole  executive  authority 
emanates  immediately  froni  the  whole  body  of  the  people, 
and  who,  through  this  organ,  at  the  same  time,  have  an  imvie- 
^'ia/e  though  qualijied  volition  in  the  legislative  capacity.  It 
is  this  and  the  principle  of  universal  suffrage,  that  renders 
our  constitution  as  perfectly  democratic  as  the  nature  of  a  go- 
vernment, by  representation,  will  admit. 

Through  the  Governor  every  taxable  is  actually  repre- 
sented ;  but  through  the  county  delegate  virtually^  and  in 
contemplation  of  law  only.  Is  the  fraction  of  a  county  repre- 
sented at  all  but  through  the  Governor  ?  It  is  but  through 
him  that  it  can  be  represented  equally.  It  is  not  possible  to 
have  it  otherwise  while  the  representation  is  by  districts.  And 
is  it  practicable  to  elect  in  all  cases  by  a  general  state  ticket  ? 

But  change  the  state  representative,  and  let  what  would 
seem  to  be  the  will  of  the  county  delegates  prevail.  ,  This  is 
all  fair.  Bringing  it  to  the  test  at  once.  The  only  question 
now  will  be,  are  the  people  sure  that  the  county  delegates  un- 
derstand their  true  interest,  and  are  rights 

I  will  be  abki:d,  v/hat  is  a  democracy  f    I  take  my  defini- 


Law  Miscellanies.  107 

tion  from  a  speech  put  into  the  mouth  of  Pericles,  by  Thu- 
cydides.  It  is  to  the  Aihenian  people.  '^  This  our  govern* 
Rient  is  called  a  democracy,  because,  in  the  administration,  it 
hath  respect,  not  to  a  few,  but  to  the  multitude  :  a  democracy; 
wherein,  though  there  be  an  equality  amongst  all  men,  in 
point  of  law,  for  their  private  contfoversics  ;  yet  in  conferring 
of  dignities  one  man  is  preferred  before  another  to  a  public 
charge  ;  and  that,  according  to  the  reputation,  not  of  his  pow- 
er, but  of  his  virtue;  and  is  not  put  back  through  the  pover- 
ty, or  the  obscurity  of  his  person,  as  long  as  he  can  do  service 
to  the  commonwealth.  And  we  live  not  only  free  in  the  ad- 
ministration of  the  state ;  but  also,  one  with  another,  void  of 
jealoufsy  towards  each  other  in  our  daily  course  of  life  ;  not 
offended  at  any  man  for  following  his  own  humour,  nor  cast- 
ing on  any  man  censure  or  sour  looks,  which  though  thty  b? 
no  punishment,  yet  they  grieve:  so  that  conversing  one  with 
another,  for  the  private,  Avithout  offence,  we  stand  chiefly  in 
fear  to  transgress  against  the  public ;  and  are  able  always  to 
be  obedient  to  those  that  govern,  and  to  the  laws  ;  and  prin- 
cipally to  such  laws,  as  are  written  for  punishment  against 
injury ;  and  such  unwritten  as  bring  undeniable  shame  to 
the  transgressor."     Hob's  translation  of  Thucyd  ides. 

This  definition  or  description,  of  a  practical  democracy, 
is  drawn  from  real  life.  It  is  iu  the  mouth  of  Pericles,  a 
man  of  business ;  a  sapient  statesman  ;  who  had  been  bred 
and  born  in  a  democracy  j  versed  in  its  affairs,  and  knew  its 
errors,  and  its  excellencies.  One  thing  is  remarkable,  that  a 
particular  excellence  v/hich  he  notices,  is  the  freedom  of 
opinion.  Where  a  govemment  is  founded  on  opinion,  it  is 
of  the  essence  of  its  preservation,  that  opinion  be  free.  It 
is  not  enough  that  no  inquisition  exists  ;  that  no  lettre  de 
cachet  can  issue;  but  that  no  m:m  shall  attempt  to  frozvn 
another  out  of  his  excercise  of  private  judgment.  Is  it  tle- 
mocracy  to  denounce  a  man  in  a  paper,  because  he  thinks 
diff  rently  on  a  measure  of  government  with  the  editor?  It 
is  tyranny ;  and  the  man  who  can  do  this  without  i-eason, 
or  moderation,  is  a  tyrant,  and  would  suppress  the  right 
of  private  judgment,  if  he  had  the  power.  I  distinguish 
between  strictare,  and  abuse.     All  depends  upon  the  man- 


108  Law  Miscellanies^ 

ner  and  the  toleration.  A  man  is  not  always  a  deserted 
from  just  politics,  because  he  cannot  agree  with  me  in 
opinion,  on  a  particular  subject.  Mutual  toleration  and 
forbearance,  in  our  sentiments,  with  regard  to  the  legality, 
or  expedience  of  measures,  is  the  soul  of  democracy..  It 
is  that  which  distinguishes  it  from  despotism,  as  polite 
manners  the  fine  gentleman  in  polished  life  ;  in  civilized  so- 
ciety. In  a  despotic  country,  it  is  the  boot,  or  the  thumb- 
screw or  the  cord,  that  brings  a  man  to  reason ;  at  least  the 
wheel  and  the  pulley  are  used  for  this  purpose.  What 
better  in  a  republic  where  a  man  is  this  day  a  patriot,  and  the 
next  day  a  traitor,  at  the  whim  of  him  who  bestows  the  ap- 
pellation ?  In  the  livid  dens  of  despotism,  state  prisons  are 
the  seminaries  of  submissive  citizens.  In  a  democracy, 
shall  terror  issue  from  lamp-black,  and  patriotism  be  put 
down  under  the  name  of  opposition.  When  a  man  frowns 
upon  me  because  I  have  dissented  from  him  in  opinion,  on 
political  matter,  I  discover  clearly  the  grade  of  his  political 
standing  and  improvement. 

But  it  will  be  said,  are  not  your  democrats,  all  noisy,  vo- 
ciferous, intolerant  and  of  a  persecuting  spirit  ?  I  say  such 
are  not  democrats  ;  they  are  spurious,  and  usurp  the  name.  In 
a  government  founded  on  opinion,  nothing  ought  to  be  a  re- 
proach, that  is  the  exercise  of  private  judgment.  It  is  sub- 
ve;*sive  of  the  essence  of  liberty.  A  frorvn  is  the  shadow  of 
force^  and  he  that  uses  the  one,  •would  have  recourse  to  the 
other. 

These  observations  allude  to  what  is  practical  in  demo- 
cracy, and  cannot  be  established  or  prohibited  by  the  laws  ; 
but  constitute  the  manners  which  a  democratic  government 
inculcates,  and  is  calculated  to  produce  ;  and  it  will  be  ob- 
servable, that  there  is  a  great  deal  of  this  among  the  body 
of  the  people,  who  have  been  accustomed  to  liberty.  It  is 
chiefly  amongst  the  young  in  the  -world,,  or  young  in  the  coun- 
try^ that  the  contrary  spirit  shews  itself.  I  am  amongst 
those  who  carry  my  ideas  in  favour  of  the  naturalization  of 
foreigners,  perhaps  too  far.  I  am  for  excercising  the  rights 
of  hospitality  to  them,  to  all  extent  at  once ;  making  them 
citizens,  and  giving  them  the  right  of  sffurage,  and  even  of- 


Law  Miscellanies.  109 

fice,  the  moment  they  set  a  foot  upon  the  shore.  For  I 
cannot  see  on  what  ground,  we  can  justify  a  refusal.  But  I 
do  not  mean  to  discuss  this  point  at  present.  I  introduce  it  to 
shew  that  I  am  liberal  in  my  notions,  with  regard  to  the  pri- 
vileges of  foreigners.  But  I  admit,  that  it  takes  some  time 
to  give  them  correct  ideas  of  the  limits  of  liberty.  It  is,  I 
believe,  a  saying  of  the  Grand  Pensionary,  De  Wit,  of  Hol- 
land, that"  it  takes  a  man  half  an  age  to  enjoy  liberty,  before 
he  can  know  how  to  use  it."  Nevertheless,  I  cannot  see  the 
inexpediency  of  admitting  to  a  vote,  the  emigrant  that  comes 
amongst  us,  the  first  day  he  presents  himself.  He  will  be 
instructed  bv  those  that  have  been  here  before  him.  He 
must  take  his  ticket  from  some  one. — Is  the  ocean  afraid  of 
the  rivers  ?  Even  when  they  come  turbid  with  the  swell  of 
the  mountains  ?  The  sea  clarifies,  or  they  are  lost  in  it. 
Who  complains,  out  at  sea,  of  a  spring  flood  muddying  the 
waters  ?  This  ought  to  be  a  lesson,  at  the  same  time,  to 
emigrants,  that  they  "  use  their  liberty,  so  as  not  abusing  it." 
It  is  a  strange  thing  to  see  a  man  come  in  the  other  day,  un- 
dertake to  set  all  right ;  and  to  denounce  men  of  age  and 
high  standing,  as  guilty  of  defection.  But  what  good  is  there 
in  the  world  without  an  alloy  of  evil  ?  What  exercise  of 
right  without  abuse  ?  If  I  am  wrong,  it  is  the  excess  of  libe- 
rality. 

But  I  find  another  principle  in  the  oration  of  Pericles,  in 
the  justness  of  which,  I  am  more  confident.  That  is,  the 
equal  right  of  office  to  all  the  citizens.  As  the  greater  con- 
tains the  less,  this  involves  the  right  of  vote.  The  only  /jua- 
lijication  of  which  I  can  have  any  idea,  as  justifiable,  is  that 
of  age  ;  and  I  should  have  no  objection  to  see  this  restrict- 
ed to  a  greater  age  than  that  of  21, — say  45  years.  At  this 
time  men  cease  to  be  fit  for  the  militia,  or  other  ministerial 
services.  Let  them  then  become  legislators,  and  have  the 
right  of  vote  in  making"  laws^  or  chusing  those  that  represent 
in  making  them.  This  would  take  off  a  great  deal  of  wild- 
fire in  our  elections,  and  it  would  keep  away  vain  young  men 
from  our  public  councils. 

What  absurdity  does  the  ideaof  a  qualification  of  proper- 


110  Law  Miscellanies. 

ty  involve  !  It  unhinges  the  ideas  of  the  ancient  republicans  ; 
that  it  was  honourable  to  have  enriched  the  republic,  and  to 
remain  poor  themselves.  To  be  wise,  a  man  must  be  rich. 
No,  but  to  be  honest,  he  must  have  an  estate.  But  in  get- 
ting this  estate,  he  may  have  been  a  rogue.  In  general,  he 
must,  in- some  measure,  have  neglected  the  improvement  of 
his  mind.  At  least,  it  does  not  follow,  that  in  proportion  as 
a  man  is  poor,  he  is  not  to  be  trusted.  They  are  frequently 
the  most  generous  souls  who  have  amassed  little  wealth  ;  on 
the  contrary  the  most  ignoble,  who  have  acquired  great  pro- 
perty. The  man  that  has  set  his  heart  on  riches,  is  lost  to 
benevolence,  and  public  spirit.  In  the  possession  of  office, 
he  is  thinking  of  what  can  be  made  by  it.  "  Nothing  can  be 
great,"  says  the  stoic  philosopher,  Epictetes,  "  the  contempt 
of  which  is  great.  It  is  great  to  despise  riches.  These  can- 
not therefore  be  great.^^ 

But  how  can  we  measure  the  value  of  property,  and  fix 
the  criterion  ?  Shall  it  be  real  property,  a  freehold  ?  Is  my  acre 
worth  more  than  yours  ?  Shall  I  have  but  an  equal  right  ?  What 
are  the  drawbacks  upon  my  estate  ?  My  debts  and  credits  ? 
It  is  the  surplus  that  makes  my  property,  even  in  the  case  of 
the  substantial  fund  of  freehold.  But  property  is  not  the 
only  stake.  Person  and  character,  are  stakes.  Every  man 
that  has  a  head  has  a  stake.  There  is  no  proportioning  it. 
In  what  is  impracticable  we  can  have  no  election.  It  is  there- 
fore an  excellent  principle,  of  our  excellent  constitution,  that 
all  men  have  an  equal  right  of  suffrage,  und  an  equal  right  of 
office. 

I  should  not  like  to  live  i«  a  republic  where  a  man  must 
be  worth  so  much,  to  have  equal  rights;  even  could  it  be  as- 
certained what  I  am  worth  ;  which,  as  I  have  said,  is  im- 
practicable. How  many  men  have  I  passed  in  life,  less  in- 
dustrious than  myself,  and  yet  richer.  They  have  had  bet- 
ter luck,  as  we  express  it  ;  or  they  have  been  more  selfish, 
and  kept  what  they  got.  Can  a  man  that  is  looking  at  the 
stars,  mind  what  is  under  his  feet  ?  We  read  of  most 
of  the  great  statesmen  of  antiquity,  and  virtuous  heroes,  that 
they  were  poor.     It  is  no  uncomijion  tl>ing  to  find  it  added 


XaW  MiSCFLLANIES.  Ill 

that  they  themselves  were  buried,  or  their  children  educated 
at  the  public  expence.  The  love  of  science  ;  and  the  love  of 
the  public  is  at  variance  with  attention  to  private  emolument. 
Shall  it  then  be  disreputable  in  a  republic  to  be  poor .'  Shall 
it  operate  as  a  crime  and  disqualify  from  the  noblest  func- 
tion in  society,  the  enacting  laws  ? 

But  it  is  not  so  much,  in  the  extension  of  the  right  of 
suffrage,  as  in  a  delicate  and  just  use  of  it,  that  the  demo- 
cratic character  consists.  Will  you  see  an  upright  citizen 
practise  unfairness  in  an  election ;  go  upon  the  ground  to 
canvass  for  himself,  unless  in  the  case  of  a  ministerial  of- 
fice ?  and  even  in  this,  with  great  caution  and  forbearance. 
Will  you  see  him  substitute  or  change  a  ticket?  much  less 
introduce  and  obtain  a  vote  for  an  unqualified  individual  ? 
no  upright  man  was  ever  capable  of  this.  It  is  with  the  ari- 
stocracy or  ambitious  men  that  these  arts  are  practised. 
They  count  it  robbery  to  be  stinted  at  an  equal  vote; 
and  think  it  no  injustice  to  make  themselves  whole  by  tak- 
ing a  plurality  by  whatever  means  in  their  power.  This 
is  all  a  usurpation  of  the  sovereign  authority ;  and  in  some 
republics  has  been  punished  with  death.  In  countries 
where  the  goverrDuent  in  a  fraud  upon  the  people^  and  the 
right  of  suffrage  where  it  even  partially  exists,  is  but  a  narne ; 
it  may  be  thought  innocent  to  deceive,  raid  to  slur  our 
votes.  For  it  is  a  buying  and  selling  throughout.  The  can- 
didate buys  the  vote,  and  has  in  the  mean  time  sold  him- 
self. He  is  oftentimes  purchased,  and  paid  in  iidvance,  and 
bribes  with  a  part  of  the  money  that  he  gets.  Not  so  in 
this  heaven  of  liberty,  where  other  stars  glitter,  uhere 
other  suns  and  moons  arise  ;  this  beautiful  world  of  liber- 
ty, in  these  states.  Perdition  on  the  man  that  saps  its  foun- 
dation with  intention  j  forgiveness,  but  reformation  of  er- 
ror, to  him  who  destroys  it  by  mistake.  And  yet  these 
last  are  more  to  be  dreaded  than  the  former.  At  least  as 
much  ;  because  the  error  of  opinion  is  equally  fatal,  though 
originating  from  a  different  principle  of  the  mind,  and  often- 
times founded  in  virtue. 

Who- ever  saw  a  good  citiy.en  keep  an  open  house  at  an 


112  Law  Miscellanies. 

election  for  a  place  in  the  legislative  body  ?  He  is  too  poor, 
says  one.  He  is  poor  because  he  is  honest.  At  least  be- 
ing poor,  he  is  honest.  I  have  seen  open  houses  kept  in  a 
republic ;  and  private  friendship,  or  personal  safety  has  some- 
times stood  in  the  way  of  my  endeavours  to  bring  the  per- 
sons to  account.  But  disapprobation,  and  a  portion  of  con- 
tempt has  invariably  attached  itself  to  the  transaction.  What 
man  can  set  the  world  right  ?  The  greatest  self-denial  is 
obliged  to  yield  sometimes  to  personal  considerations. 
Hence  it  is,  that  I  have  often  been  silent  when  I  saw  fraud, 
and  unfairness  before  my  eyes.  Fraud  in  elections  is  at  the 
root  of  all  wickedness  in  the  government  of  a  republic.  A 
man  of  just  pride  would  scorn  the  meanness  of  succeeding 
by  a  trick  ;  a  man  of  proper  sense  would  know,  that  in  the 
nature  of  things,  no  good  can  come  of  elevation  obtained 
by  such  means.  Success  by  fraud,  will  never  prosper.  All 
men  despise  cheating  at  cards,  or  other  games.  He  is  turn- 
ed out  of  company  that  is  found  guilty  of  it.  And  shall  we 
restrain  our  indignation  ;  or  can  we  withhold  our  contempt 
when  an  individual  is  found  cheating,  not  at  a  game  of  chance 
or  skill  amongst  idle  men  ;  but  in  the  serious  business  of  real 
life,  and  the  disposition  of  our  lives,  characters  and  fortunes  ? 
I  pledge  myself  no  good  man  is  guilty  of  this ;  at  least  those 
guilty  of  it  are  not  good  men.  They  are  not  true  brothers  i 
real  masons.  They  have  been  made  at  a  false  lodge  ;  and 
will  not  be  acknowledged.  Thus  it  must  be  seen,  I  found 
republicanism  in  virtue;  that  is  in  truth,  honour,  justice,  in- 
tegrity, reason,  moderation  ;  civility,  but  firmness  and  forti- 
tude in  the  support  of  right :  quarter  to  error  of  opinion  ; 
and  the  aberrations  of  the  heart ;  but  death  to  ambition, 
and  the  vain  desire  of  honour,  without  just  pretension  ;  and 
death  to  all  knavery,  and  meditated  hostility  to  the  rights  of 
men. 

Digressing  a  little,  or  rather  returning  to  what  I  have 
said  on  the  first  point,  the  right  of  naturalization,  I  admit 
that  emigrants  come  when  they  will,  are  likely  to  be  in  op- 
position to  the  existing  government,  or  rather,  administra- 
tion.    This   depends  upon  natural  principles.     The  govern- 


Law  Miscellanies.  IIS 

mentsof  Europe  are  most  of  them  oppressive,  and  it  is  oppres- 
sion that  drives,  in  most  instances,  the  inhabitant  from  amongst 
them.  The  poor  or  the  most  enterprising  are  those  that  emi- 
grate. They  have  been  in  the  habit  of  thinking  of  a  reform,  in 
the  state  of  things  in  that  country,  from  which  they  come ;  it  is 
natural  for  them  to  think  that  a  little  touch  of  their  hand  may 
be  still  necessar}'  here.  Did  you  ever  know  a  new  physician 
called  in  that  would  not  be  disposed  to  alter  the  prescription, 
or  to  add  to  it  ?  What  occasion  for  him,  if  there  was  not 
something  to  be  added,  or  retrenchment  made  ?  Or  how  can 
he  shew  himself,  but  in  changing  the  medicines  or  the  regi- 
men. Extremes  beget  extremes  in  opinions,  as  well  as  in 
conduct.  The  extreme  of  government,  where  he  has  been, 
leads  to  licentiousness  in  his  ideas  of  liberty,  now  where  he 
is. 

Besides  it  is  in  this  revolution  of  administration,  if  he 
is  an  ambitious  man,  that  he  finds  his  best  chance  of  ascend- 
ing. He  is  therefore  a  demagogue  before  be  becomes  a  pat- 
riot. I  acquiesce,  therefore,  in  the  policy  of  our  constitu- 
tion, and  our  laws,  which  prescribe  a  kind  of  mental  quaran- 
tine to  the  foreigner ;  though  I  incline  to  the  generosity  of 
those  who  think  it  unnecessary,  and  that  such  a  great  body 
of  people  have  nothing  to  fear  from  the  annual  influx  of  a 
few  characters,  that  may  for  some  time,  carry  with  them  more 
sail  than  ballast.  We  had  half  Em*ope  with  us,  in  our  re- 
volution. We  had  all  Ireland,  the  officers  of  government  ex- 
cepted, and  even  some  of  these.  I  therefore,  do  not  like  to 
see  an  Irishmtii  obliged  to  perform  a  quarantine  of  the  in- 
tellect. I  thiak  it  contributes  to  sour  his  temper,  and  to  fix 
a  prejudice  against  the  administration,  under  which  the  li- 
mitation has  been  introduced.  However,  this  may  be  more 
splendid  in  theory  than  safe  in  experience,  and  I  submit  to 
the  policy  that  has  been  adopted  vmtil  the  constituted  autho- 
rities, shall  think  proper  to  regulate  it  otherwise.  In  the 
mean  time,  if  this  book  should  be  read  by  any  foreigner  of 
high  parts,  and  spirit,  I  would  recommend  it  to  him  to  sus- 
pend his  judgment  upon  men  and  things,  until  he  has  exam- 
ined well,  the  ground  upon  which  he  stands  :  to  repress  am- 


i  14  Law  Miscellakies'. 

bition  and  the  desire  of  office,  until  unsought,  it  comes  to 
him,  during  which  time  he  may  have  become  quahfied  to 
discharge  it;  and  will  have  had  an  opportunity  of  finding  out 
what  he  will  finally  discover,  that  the  best  men  are  the  most 
moderate* 

Intemperance  of  mind,  or  manner  in  a  foreigner,  gives 
colour  to  the  imputation,  that  all  are  incendiaries.     It  be- 
comes therefore,  a  matter  of  discretion,  and  just  prudence, 
on  his  part,  to  be  cautious  in  coming  forward  to  take  a  lead 
in  politics,  until  lie   has  well   examined  the  field  of  contro- 
versy.    But  because  foreigners  may  abuse  the  privilege,  I 
^vould  not     xclude  them  by   a  law,  did  the  matter  rest  on 
first  principles.     I  should  think  myself  justifiable  in  exclud- 
ing from  my  society,  and  the  government  I  had  formed,  the 
inhabitants  of  another  planet,  could  they  come  from  thence  ; 
because  I  do  not  know  the  kind  of  nature  they  are  of  j    but 
men  of  this  earth,  of  similar  forms,  and  of  like  passions  with 
ourselves,  what  have  I  to  fear  from  them  ?     What  right  have 
we  to  exclude  them  ?     We  are  not  born  for  ourselves  ',    nor 
did  we    achieve  the    revolution    for   ourselves    only.     We 
fought  the  cause  of  all  mankind  ;  and  the  good  and  great  o^ 
all  mankind  wished  well  to  us  in  the  contest.     With  what 
anxiety  did  we  look  to  Europe,  for  assistance.     We  derived 
assistance  even  from  the  good  will  of  nations.     It  is  an  ad- 
vantage to  have  a  popular  cause  in  a  war.     Have  we  a  right 
to  shut  ourselves  up  in  our  shell,  and  call  the  society  we  have 
formed,  our  own   exclusively  ?     Suppose  we  had  a  right  to 
the  govcrment  exclusively,  have  we  a  right  to  the  soil  ?  That 
is  ours,  subject  to  the  right  of  all  7nankind.     Pre-occupancy 
can  give  a  right,  but  to  a  small  portion  of  the  soil  to  any  in- 
dividual.    To  as   much  only  as  is  reasonably  necessary  for 
his  subsistence.     All  the  remainder  is  a  surplus,  and  liable 
to  be  claimed  by  the  emigrant.     If  he  cannot  get  his  right 
under  the  great  charter  of  nature,  without  coming  within  the 
sphere  of  our  government,  and  we  hinder  him  to  establish  a 
society  for  himself  within  ours,  why  abridge  him  even  for  a 
mo.nv:nt ;  of  th*  rights,  immunities,  and  privileges  of  thJli 
which  we  have  instituted  ? 


Law  MiscELLA.viF.i;,  ll> 

>'  Of  the  King's  Prerogative."     1  Bl.  Com.  246. 

Is  there  any  thing  in  the  nature  of  a  prerogative  under 
our  commonwealth  ?     Unquestionably  there  is  ;  and, 

1st.  In  contemplation  of  law  the  peohle  cannot  be  consi- 
sidered  as  having  done  wrong.  Id  quod  sibi  populus  consti- 
tuit,  jus  est.  It  is  laxvful  and  right  whatever  the  people  or- 
dain. But  occasional  representatives  may  do  wrong.  For 
they  may  transgress  the  constitution.  But  the  only  remedy 
is  the  not  delegating  them  again  ;  and  sending  others  who 
will  repeal  the  act  by  which  they  had  so  transgressed  ;    but^ 

2d.  It  is  provided  by  the  constitution,  Art.  9.  ^^  10.  that 
*' no  man's  property  shall  be  taken,  or  applied  to  public  use 
without  the  consent  of  his  representative,  and  without  just 
compensation  being  made."  And  this  implies  that  the  pro- 
perty of  an  individtial  maybe  taken  away  by  law  for  a  pub- 
lic purpose,  the  commonwealth  making  just  compensation. 
This  comes  under  the  head  of  prerogative  ;  for  no  individu- 
ial  can  do  this.  The  property  cannot  be  taken  away  directly  ; 
so  neither,  I  apprehend,  can  it  be  taken  nway  indirecthj  ;  and 
the  claim  of  a  priority  in  a  payment  of  debts,  cannot  exist 
under  our  constitution.  For  it  is  in  fact  taking  away  a  man's 
property  who  has  a  right  to  be  paid  first ;  and  to  give  this 
right  of  taking  to  the  commonwealth  where  nothing  will  be 
left  to  discharge  the  debt  due  to  the  individual.  In  England 
a  priority  of  payment,  in  the  case  of  the  king  had  some  rea- 
son to  support  it,  under  feudal  policy,  according  to  the  arti- 
ficial structure  of  the  system  ;  but  none  under  our  common- 
wealth, where  the  people  in  whom  the  government  is,  may 
tax  themselves  ad  libitum  for  its  support.  There  is  no  ne- 
cessity; and,  there  can  be  no  right  to  alleviate  the  public 
burthens  at  the  cxpence  of  a  citizen,  confiscating  his  debt, 
by  giving  a  priority  to  the  commouweath.  There  can  l)e  no 
necessity  ;  for  taxes  can  be  laid  and  raised  commensurate 
with  the  public  exigencies  ;  and  bonds  witli  sufficient  securi- 
ty taken  from  official  functionaries  to  secure  duties  to  bb  per- 
J?6rmed  or  dues  to  be  collected.     There  cannot  b'^  in  the  nu« 


116-  Law  Miscellanies. 

ture  of  the  case  a  just  compensation  but  the  debt  itself  which 
will  be  its  own  measure,  and  this  would  amount  to  nothing 
more  than  the  taking  with  one  hand  and  paying  with  the  other, 
which  would  be  an  absurdity.     But ; 

3d.  It  is  the  nature  of  a  prerogative  of  the  common' 
wealth,  that  it  cannot  be  sued;  or  at  least  this  will  not  be 
permitted,  but,  sub  modo,  and  by  special  law.  The  com- 
monwealth cannot  be  sued  ;  which  though  it  may  seem  an 
unreasonable  thing,  yet  the  carrying  a  judgment  against  the 
state  into  effect,  by  compulsory  process,  constitutes  the  diffi- 
culty in  the  way  of  permitting  a  suit  to  be  instituted  in  the 
first  instance.  For  in  the  case  of  executory  process  there  can 
be  no  writ  to  take  a  corporate  hodij^  and  the  inexpediency  of 
permitting  a  levy  on  the  public  funds,  money  in  the  treasu- 
ry, or  lots  on  which  the  public  buildings  are  erected,  is  such, 
as  in  the  opinion  of  the  legislature  to  prohibit  it.  Hence 
no  general  law  enabling  a  creditor  of  the  state  to  sue  j  and 
unless  by  law  specially  provided,  and  given  in  the  particular 
instance,  it  has  not  been  done  ;  and  this  must  be  considered, 
rather  with  a  view  to  inform  the  conscience  of  the  legisla- 
ture who  will  do  right,  and  not  as,  ex  adverso  suing  to  a 
judgment.  Laws  have  passed  in  some  instances  giving  leave 
to  individuals  to  bring  suit ;  but  this  not  under  the  idea  that 
in  case  of  debt  or  damages  found,  execution  should  issue  ; 
but  that  the  state  should  satisfy;  and  in  a  case  of  real  estate, 
direct  possession  to  he  delivered.  For  it  must  be  understood 
that  there  shall  be  a  saving  of  the  principle,  that  in  contem- 
plation of  law,  the  commonwealth  should  be  supposed  to  have 
done  no  "wrong.  It  is  in  order  to  ascertain  what  is  right, 
that  such   legal  process  is  instituted  and  enquiry  made  ;  But, 

4th,  The  not  being  bomid  by  prescription  of  time  is  a 
prerogative  which  our  commonwealth  posesses,  unless  when 
it  is  not  taken  away  by  particular  statutes  ;  and  in  no  case, 
for  an  offence  of  malum  in  se,  is  it  taken  away.  At  any 
length  of  time  the  prosecution  of  the  ofl'ender,  for  felony  or 
misdenieanor,  maybe  taken  up.     But, 

5ih,  Thi^  nonpayment  of  costs  is  -eu^ovi  prerogative  of  the 
com '.n  on  we  alt  ^',  so  that  in  the  case  of  an  acquittal  on  an  m- 


Law  Miscellanies.  117 

Sctment  or  information  no  costs  are  allowed  to  the  defendant, 
whatever  may  be  the  expences  to  which  he  may  have  been 
put ;  but,  he  is  left  to  recover  of  the  prosecutor,  where  there 
is  one  ,*  but  if  not,  the  matter  having  been  taken  up  at  the 
instance  of  the  attorney  for  the  commonwealth  ;  or  the  court 
directing  it ;  or  the  court  binding  over  to  answer  for  a  charge, 
he  has  no  remedy ;  for  the  commonwealth  does  not  pay  costs, 

I  return  to  say  a  few  words  on  the  head  of  prescription 
of  time  not  running  against  the  commonwealth,  to  shew  that 
it  is  not  unreasonable  that  it  should  be  so  in  the  case  of 
criminal  proceedings.  For  statutes  of  limitation  are  founded 
in  the  policy  of  quieting  posessions  in  a  case  of  real  estate, 
and  of  preventing  suits  in  the  case  of  personal  actions.  But 
still  more,  in  the  presumption^  that,  in  the  case  of  debt,  or  ac- 
count, payment  has  been  made,  when  a  creditor,  within  a 
reasonable  time,  hath  not  made  a  demand ;  and  in  case  of 
trespass  called  for  satisfaction  or  brought  suit.  In  the  case 
of  real  estate  the  presumption  is  that  a  grant  has  been  made ; 
or  that  the  claimant  has  relinquished  or  abandoned.  It  is 
for  the  security  of  improvident  individuals,  that  there  should 
be  a  limitation  of  time,  because  the  evidence  of  title  may  be 
lost  or  of  money  paid,  or  satisfaction  made.  But  in  the  case 
of  an  offence  against  the  public,  the  presumption  is  that  the 
evidence  has  not  existed,  and  the  fact  come  to  light  as  affect- 
ing the  wrong-doer. 

In  the  case  of  priority  of  payment,  I  will  also  add  that, 
following  the  prerogative  of  the  crown  in  England  a  prefe- 
rence was  given  at  an  early  period,  here,  as  appears  by  acts 
of  assembly  that  are  noted  as  expired,  or  repealed,  or  suppli- 
ed. These  are  so  early  as  1705,  1710,  and  1764,  &c. 
entitled  acts,  "  for  giving  priority  of  payment  to  the  inhabi- 
tants of  the  government ;  or  directing  the  order  of  paj^ment 
of  debts  of  persons  deceased,  &c.  That  of  1764  which  gave 
a  preference  to  the  commonwealth,  after  physical  and  funeral 
expences,  has  been  supplied  by  that  of  19th  Ap.  '94,  by 
which  debts  due  to  the  commonwealth  shall  be  last  paid. 
This  is  precisely  as  it  ought  to  be,  not  because  the  common- 
wealth has  a  broad  back  ;  but  because  the  whole  people  hare 


118  Law  Miscellanies. 

a  right  to  postpone  themselves.  But  the  right  to  prefer  them- 
selves is  more  questionable ;  and  as  respects  debts  due  be- 
fore the  act,  it  cannot  be  done  consistent  with  the  constitu- 
tion. Under  a  general  law,  and  which  bears  upon  debts  to 
arise,  and  a  parte  post,  it  is  equal.  In  this  point  of  view,  the 
whole  may  have  a  right  to  prefer  themselves,  because  every 
constituent  has  in  contemplation  of  law  given  his  assent. 
But  as  there  never  can  be  any  necessity  for  such  a  general 
act,  I  do  not  approve  of  it. 

In  the  case  of  the  U.  S.  there  is  no  such />r^ro^fl?it>e,  un- 
less given  by  the  constitution.  It  is  inferred  from  it  under 
the  head  of  making  all  laws  necessary.  The  government  of 
the  union  is  invested  with  the  power,  "  to  pay  the  debts  and 
provide  for  the  common  safety  ;  to  raise  and  support  armies ; 
to  provide  and  maintain  a  navy  ;  and  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution, 
these  and  other  powers."  The  right  to  give  a  priority  of  pay- 
ment as  to  debts  due  to  the  U.  S.  is  claimed  under  this 
clause.  It  had  been  taken  under  sundry  acts  of  the  national 
legislature,  in  certain  cases,  from  an  early  period,  after  the 
adoption  of  the  constitution.  But  by  an  act  of  the  3d  March, 
'97"  this  prerogative  is  carried  to  an  equal  extent,  or  greater 
than,  by  the  prerogative  of  England  it  has  been  done.  See 
the  reasoning  of  the  counsel,  and  the  decision  of  the  court 
2d.  Cranch,  358.  And  yet  it  is  a  provision  of  the  federal 
constitution.  Art.  7  of  amendments,  that  "  private  property 
shall  not  be  taken  for  a  public  use  without  a  just  compensa- 
tion" If  our  reasoning  is  correct  with  regard  to  the  power 
©f  the  commonwealth  of  this  state,  a  fortiori,  it  must  hold  in 
the  case  of  the  U.  S.  nndtr  ^  dubious  construction  oi  the  clause 
of  necessity. 

The  right  of  prosecution  is  ranked  as  a  prerogative  of 
the  crown  ;  and  may  also  be  considered  as  a  prerogative  of 
the  commonwealth  ;  so  that  a  felony  cannot  be  co7n pounded; 
and  the  right  of  pardon  may  also  be  considered  in  that 
light :  these  and  many  other  powers  and  privileges  also, 
which  can  only  be  vested  in  the  body  politic  :  and  exercised 
hy  the  legislative  or  executive  authority;  but  I  shall  not  no- 


Law  Misceilanies.  119 

tice  tlieae  as  they  would  be  numerous.  In  judicial  trials  it 
may  be  ranked  as  a  prerogative  of  the  commonweahh,  that 
by  a  rulf  of  the  courts  it  shall  have  a  preference  in  the  order 
of  hearing;  but  this  itjittnds  oxAy  to  criminal  cases  ;  and  not 
to  those  actions  where  the  state  is  a  party  in  civil i  nor 
ought  it  to  be. 


.Jil.^  ,.^Lllr  rtJA.'it, 


NOTES  ON 
BLACKSTONE'S  COMMENTARIES, 

JOINTING  OUT  VARIATIONS  IN  THE  LAW  OF  PENNSYLVANIA 
FROM  THE  COMMON  AND  STATUTE  LAW  OF  EKGhAVIff 
WITH    OTHER    MATTERS    OF    A    GENERAL   NATURE. 


"  In  the  beginning  of  the  world,  we  are  informed  by  holy  wri^- 
"  the  all-bountiful  creator,  gave  to  man  "  dominion  over  all  the" 
"  earth :  and  overthe  fish  of  the  sea,  and  over  the  fowl  of  the  air, 
*'  and  over  every  living  thing  that  moveth  upon  the  earth."*  This 
<'  is  the  only  true  and  solid  foundation  of  man's  dominion  over  ex- 
"temal  things,  whatever  airy  metaphysical  notions  may  hav^' 
"been  started  by  fanciful  writers  upon  this  subject."  II  BL 
Com.  2. 

It  is  an  objection  to  the  theory  of  this  commentator  that 
the  authority  of  the  legislator  of  the  Jews  is  not  univer- 
sally acknowledged. 

With  such  therefore  who  do  not  acknowledge  this  autho- 
rity, the  dominion  of  man  over  the  earthy  and  all  that  it  con- 
tains, must  be  established  on  other  evidence.  It  may  be  asked 
then,  may  it  not  be  established  by  the  li^ht  of  nature,  dis- 
tinct from  revelation ;  or  in  other  words,  placed  on  the 
foundation  of  the  lazvs  of  nature  themselves. 

However  this  very  great  commentator  may  sneer  at  the 
"  airy  metaphysical  notions  of  fanciful  writers  on  the  sub- 
ject," it  will  be  but  a  narrow  foundation  to  all  the  world,  to 
place  it  on  the  authority  of  Moses  alone. 

*Gen.  1.  28. 


Law  Miscellanies.  121 

Wliat  law  of  nature  can  give  this  dominion  ?  What  can 
be  the  evidence  of  it  ?  His  superiority  over  all  other  animals 
and  the  having  the  power  to  subdue  thenu,  is  all  the  evidence 
that  can  be  derived  from  the  light  of  nature.  And  this  evi- 
dence is  sufficient ;  for  power  gives  dominion,  and  is  the  ulti- 
ma ratio  of  it.  As  between  men  and  other  animals,  it  may 
be  put  upon  the  ground  of  mutual  benefit ;  but  except  in 
the  case  of  the  dog;  the  benefit  would  seem  to  be  all  on  the 
side  of  man.  The  dog,  of  every  species,  seems  by  his  at- 
tachment  to  man,  and  by  the  mutual  interest  of  both,  to  be 
associated  with  hian  ;  but  it  is  as  subservient,  to  which  con- 
dition, he  seems  willing  to  submit,  that  their  mutual  inte- 
rest can  exist.  In  fact,  supposing  a  mutual  benefit  to  exist 
on  the  side  of  any  other  animal  from  his  association  with 
man,  it  can  only  be  under  the  idea,  and  on  the  actual  ground 
of  subserviency  to  this  the  lord  of  the  creation.  But  can 
his  right  not  only  to  the  services  of  these  animals,  but  to 
their  lives  be  shewn  by  the  light,  or  be  derived  from  a 
law  of  nature  ?  the  carnivorous  teeth  of  man,  may  be  re- 
curred to  as  the  same  evidence  which  nature  exhibits  in  the 
brutal  creation.  Beast  devours  beast;  and  fish  and  fowl, 
even  those  that  have  not  teeth,  prey  upon  the  inferior,  or  in 
other  words  the  weaker  as  a  law  of  their  nature* 

But  as  between  men,  and  those  whom  he  can  subdue  of 
his  own  species  what  is  the  law  of  nature.  All  respect  their 
peculiar  species,  but  it  is  confined  to  animals  of  the  same 
species.  For  though  dog  xvill  not  eat  dog,  as  the  proverb  is 
yet  he  is  hostile  to  the  fox,  which  is  not  far  removed  from 
his  kind ;  perhaps  not  farther  than  man  is  in  many  instances 
from  man. 

But  though  it  may  not  be  a  law  of  nature  that  men 
should  devour  such  as  are  in  the  shape  of  men,  yet  what 
hinders  to  compel  their  services  if  they  have  it  in  their 
power  ;  more  especially  if  at  least  one  side  is  benefitted  by  it, 
which  is  disputed.  For  tlie  holder  of  a  slave  is  said  by 
moralists  to  be  equally  injured  by  the  holding,  with  the  slave 
himself.  Bat  this  leads  to  a  disquisition  into  which  I  shall 
not  enter.  I  shall  confine  myself  to  consider  the  sovereignty 


122  '  Law  Miscellanies. 

of  man  over  the  inanimate  creation  or  th^  earth  itself.  Of 
\\\\%  right  of  dominion  \htvft  is  some  evidence,  above  brute 
animals,  in  favouB  of  such  as  cultivate  the  earth ;  because 
it  is  ameliorated  or  made  more  productive,  by  the  skill  and 
labour  of  such.  But  as  to  savages  who  do  not  cultivate  the 
soil,  or  sustain  themselves  to  much  extent,  by  that  means, 
they  are  in  the  same  situation  as  to  this  evidence  of  right, 
with  the  beasts. 

This  leads  to  the  question  as  to  the  right  of  men  be- 
tween themselves,  with  regard  to  portions  of  the  earth.  I  have 
discussed  both  this  and  the  preceding  question  elsewhere  ; 
and  which  discussion  I  shall  save  myself  trouble  by  insert- 
ing here.  It  is  from  a  miscellany  entitled  Gazette  Publi- 
cations. It  comprehends  also  some  thoughts  with  regard  to 
the  discovery  of  a  soil,  as  giving  some  priority  of  claim. 

"  The  right  of  Grc.\t  Britain  to  the  soil  of  North-Ame- 
rica, founded  o\\  the  first  discovery  of  the  coast,  however 
just  in  its  natui'c,  yet  was  limited  in  its  extent,  by  the  right  of 
the  natives,  and  the  right  of  other  nations.  The  right  of 
the  natives  has  been  generally  supposed  not  to  limit  but  ex- 
clude all  others.  For  the  law  of  nature  vests  the  soil  in  the 
first  occupant,  and  these  from  the  earliest  times  had  possessed 
the  country.  But  fs\\-A\\.  a  few  tribes  thinly  scattered  over  an 
immense  continent  retain  possession  of  it,  while  other  parts 
of  the  globe  are  overcharged  with  inhabitants  ? 

To  set  this  matter  in  a  clear  point  of  view,  we  shall  re- 
vert to  the  origin  of  that  right  which  all  men  have,  in  com- 
mon with  each  other,  to  the  earth,  the  water  and  the  air; 
and  this  we  shall  find  in  the  extensive  grant  to  the  first  pair, 
and  in  them  equally  to  all  their  descendants.  This  grant  is 
recorded  in  the  first  chapter  and  the  first  book  of  the  sacred 
law  ;  And  God  blessed  them^  and  God  saidunto  them,  be  fruit- 
ful and  multiply  and  replenish  the  earth,  and  subdue  it :  aiid 
have  dominion  over  the  psh  of  the  sea,  and  over  the  fowl  of  the 
air,  and  over  every  living  thing  that  moveth  upon  the  earth. 
The  words  of  this  grant  convey  no  righ;  of  primogeniture, 
or  any  other  right  by  which  one  man  may  occupy  a  larger 
portion  of  the  soil  than  his  neighbour  ;  for  rights  of  this  kind 


Law  Miscellanies.  123 

are  the  establishments  of  civil  policy,  and  can  have  no  place 
between  individuals  in  a  state  of  nature  ;  or  between   differ- 
ent nations,  who  are  in  a  state  of  nature  ;  with  relation  to  each 
other.     The  unequal  distribution  of   the  soil,  would  disap- 
point the  manifest  intention  of  the  grant,  which  was  to  peo- 
ple and  improve   the  earth  ;  for  it  is   unfavorable  to  popula- 
tion that  societies  or  individuals  should  possess  a  greater 
quantity  of  soil  than  is  necessary  for  their  own  subsistence. 
To  apply  this  to  the  aborigines  or  native  Indians  of  Anie- 
rica :  Shall  these   tribes,  inferior  in  number  to  perhaps  one 
twentieth  of  the  inhabitants  of  Europe,  possess  ten  times  the 
territory  f     It  will  be  said  that  their  manner  of  life  makes  a 
greater  quantity  of  soil  necessary.     They   live  by  hunting, 
and  though  their  tribes  are   thinly  scattered  over   the  conti- 
nent, yet  the  whole  is   no  more  than  sufficient  for  a   hunting 
ground  ;  nay,  with  even  this  extent  of  country  their  subsist- 
ence is  precarious,  and  they  frequently  experience  the   seve- 
rest rage  of  famine,  when  the  wild  animals  that  make  their 
food  are  rendered  scarce,   or  have  withdrawn  to  a  different 
forest  of  the  country.     But  do  the  laws  of   revelation  or  of 
nature   leave   every  man    at  liberty  to  use  what  manner  of 
life  he  pleases?     This  will  deserve  some  consideration. 

Before  the  fall,  the  earth  spontaneously  brought  forth 
every  herb  and  every  tree  for  the  use  of  man,  and  we  may 
reasonably  presume,  that  without  cultivation  it  would  then 
support  a  larger  number  of  inhabitants  than  it  can  at  present 
with  the  utmost  labour  we  are  able  to  bestow  upon  it.  In  this 
state  of  things  it  was  not  necessary  to  exercise  the  arts  of  in- 
dustry ;  but  when  the  curse  attendant  on  the  lapse  of  Adam, 
"  glanced  aslope  upon  the  ground,"  and  it  became  sterile,  the 
cultivation  of  it  was  enjoined  on  man,  not  only  as  his  punish- 
ment, but  as  now  the  only  me^ns  by  which  he  could  support 
himself,  and  comply  with  the  conditions  of  the  grant,  "  re- 
plenish the  eartii  and  subdue  it.  Th  -  Lord  C^cd  scut  him 
(the  first  man)  forth  from  the  garden  of  Eden,  to  till  die 
ground." 

I  acknowledge  in  the  early  times  the  cultivation   of  the 
^rth  was  not  so  immediately  enjoined  as  necessary ;  for  the 


424  Law  Miscellanies. 

few  inhabitants  might  live  by  pasturage,  and  for  some  space- 
of  time  posterior  to  the  general  deluge,  when  the  flesh  of 
animals  was  given  to  the  use  of  man,  they  might  subsist  by 
hunting;  but  on  the  closer  settlements  of  families  and  na- 
tions, this  manner  of  life  became  impossible  to  one,  without 
engrossing  more  territory  than  could  be  spared  to  another, 
and  as  all  could  not  subsist  in  this  manner,  no  one  had  a  right 
to  claim  it  as  an  exclusive  privilege. 

The  law  of  nature,  where  the  law  of  revelation  is  not 
known,  sufficiently  enjoins  on  every  man  that  he  contract  his 
claim  of  soil  to  equal  bounds,  and  pursue  that  manner  of  life 
^hich  is  most  consistent  with  the  general  population  of  the 
earth,  and  the  increase  of  happiness  to  mankind  :  and  it 
will  easily  appear  that  the  mode  of  life  by  pasturage  or  hunt- 
ing, requires  a  more  extensive  territory  than  by  agriculture ; 
and  at  the  same  time  from  the  very  circumstance  of  thin  and 
scattered  settlements  in  that  state,  the  powers  of  genius  are 
inactive,  the  arts  and  sciences  remain  unknown,  and  man  con- 
tinues to  be  an  animal  differing  in  nothing  but  in  shape  from 
the  beasts  of  prey  that  roam  upon  the  mountain.  The  life 
of  these  is  therefore  not  human ;  for  it  is  abhorrent  from 
the  way  of  life  which  God  and  nature  points  out  as  the  life 
of  man.  "  The  Lord  God  sent  him  forth  to  till  the  ground  ;'* 
and  common  reason  has  discovered  that  from  the  goodness 
and  benevolence  apparent  in  the  whole  creation,  and  from 
that  provision  made  abundantly  for  every  creature,  it  must 
be  most  agreeable  to  the  Creator  that  the  earth  be  stored 
with  inhabitants ;  and  that  in  order  to  this  end,  a  way  of 
life  be  chosen  in  which  individuals  or  particular  na*ionSt 
may  subsist  with  the  least  extent  of  territory. 

The  aborigines  of  this  continent  can  therefore  have  but 
small  pretence  to  a  soil  which  they  have  never  cultivated. 
The  most  they  can  with  justice  claim,  is  a  right  to  those 
spots  of  ground  where  their  wigwams  have  been  planted, 
and  to  so  much  of  the  soil  around  them  as  may  be  necessary 
to  produce  grain  to  support  them,  their  families,  in  towns  up* 
on  , he  coast,  or  in  the  inland  country,  where  they  have  inha- 
Wted.     Perhaps  they  may  have  some  priority  of  right  to  oc- 


Law  Miscellanies.  125 

cupv  a  different  country,  should  it  be  their  choice  to  change 
the  situation  where  former  circumstances  may  have  placed 
them. 

The  continent  of  North- America  may  therefore  on  the 
first  discovery  of  the  coast,  by  any  civilized  European  na- 
tion, be  considered  as,  the  greater  part  of  it,  a  vacant  country 
and  liable  to  become  the  property  of  those  who  should  take 
the  trouble  to  possess  it.  Nevertheless  I  do  not  mean 
to  justify  the  waging  an  unnecessary  war  against  the  na- 
tives, or  the  extirpation  of  them  altogether ;  but  vet  I  would 
justify  encroachment  on  the  terrritory  claimed  by  them,  un- 
til they  are  reduced  to  smaller  bounds,  and  undf  r  the  neces- 
sity of  changing  their  unpolished  and  ferocious  state  of  life, 
for  fixed  habitations  and  the  arts  of  agriculture.  At  the 
same  time  I  think  it  still  adviseable  to  purchase  from  them, 
if  it  may  be  done  conveniently  ;  because  it  is  a  dictate  of 
humanity  to  decline  insisting  on  the  full  extent  of  anv  claim 
of  property,  if  it  may  involve  the  shedding  of  the  blood  of 
those,  who  though  sunk  beneath  the  dignity  of  human  nature, 
yet  bear  the  name  and  are  seen  in  the  shape  of  men. 

From  the  whole  of  this  reasoning  it  will  be  evident,  that 
the  right  of  Great- Britain  to  the  soil  of  this  continent,  in 
consequence  of  the  first  discovery  of  the  coast,  was  limited 
bv  the  rights  of  the  aborigines  or  native  Indians  found  upon 
it,  but  it  was  limited  in  a  small  degree,  and  the  greater  part 
of  this  immense  territory  was  then  in  strict  view  of  revealed 
and  of  natural  law,  without  an  owner  or  inhabitant. 

The  right  of  Great-Britain  to  the  soil  of  North- America, 
limited  by  the  right  of  the  natives,  was  also  limited  by^ 
the  right  of  other  nations.  The  terms  of  the  grant 
made  to  Adam,  and  renewed  to  Noah,  equally  embraced  the 
whole  of  their  descendents.  The  earth  lay  in  common,  and 
the  occupancy  of  a  portion  of  the  soil,  was  that  alone  v,'hich 
gave  to  individuals  an  exclusive  right  to  hold  it.  We  must 
restrict  the  right  of  occupancy  to  a  mo;l.  rate  portion  of  the 
soil,  because  it  is  inconsistent  with  the  original  condition  and 
express  purpose  of  the  grant,  that  an  individual,  or  a  nation 
should  possess  a  more  extensive  tract  of  country,  than  is  ne« 


126  Law  IMiscellanies.  , 

cessary  for  their  particular  subsistence.  I  have  no  douljt  but 
that  a  nation  greatly  populous,  whose  numbers  overcharge 
the  soil,  have  a  right  to  demand  territory  from  a  nation  in 
possession  of  a  soil  equally  fertile,  and  less  abounding  with 
inhabitants. 

From  the  position  which  we  have  established,  that  it  is 
the  occupancy  of  a  portion  of  the  soil  necessary  for  subsist- 
ence, that  alone  gives  a  right  to  hold  it,  it  will  follow  that  the 
circumstance  of  having  first  visited  a  country  cannot  give  a 
right  to  any  greater  portion  of  the  territory  than  is  necessary 
for  subsistence;  and  not  indeed  to  any  portion  of  it,  unless 
the  visitant  remains  to  occupy  and  dwell  upon  it.  Perhaps 
it  may  confer  a  priority  of  right  to  occupy  the  soil  while  it 
shall  be  unoccupied  by  any  other  visitant. 

We  shall  be  sensible  of  this  if  adverting  to  the  early 
emigrations,  wc  consider  that  it  would  be  absurd  in  Japheth 
the  eldest  son  of  Noah,  wandering  westwards  from  the 
mountains  of  Armenia,  where  the  ark  rested,  to  have  ad- 
vanced a  claim  to  two  or  three  countries,  because  in  his 
v/ay  of  life  by  pasturage  or  hunting,  he  had  first  passed 
the  mountains,  or  first  visited  their  boundaries. 

The  right  of  discovery  was  unknown  in  term  or  idea  to 
the  early  ages,  and  it  came  first  into  view  on  the  modern 
improvements  in  the  art  of  navigation,  when  several  of  the 
sovereigns  and  states  of  Europe  fitted  out  vessels  to  explore. 
the  seas,  and  to  make  discoveries.  The  expence  and  labour 
of  the  enterprize,  would  seem  to  give  a  right  to  the  soil  of 
that  continent  or  island  Virhich  they  had  discovered.  But  it 
may  be  said  that  an  exclusive  right  of  this  kind  would  be 
unfavourable  to  the  settlement  of  that  country,  and  there- 
fore could  have  no  place  even  amongst  the  sovereigns  and 
states  of  Europe,  who  by  tacit  and  implied  consent  had  sub- 
mitted to  it.  Much  less  could  it  have  a  place  amongst  the 
claims  of  other  nations  of  the  world,  who  in  no  way,  by  di- 
rect assent  or  implication,  had  come  to  such  agreement.  In 
the  mean  time  it  will  appear  from  histor)',  that  the  claim  of 
right,  founded  on  the  first  discovery  of  the  coast,  was  usurped 
by  several  of  the   sovereigns   and  states  of  Europe,  rather 


Law  Miscellanies.  127 

than  acknowledged  by  the  others,  who  had  not  been  equally 
adv'eatur:>us  or  succcessful  in  expeditions  of  this  nature. 
The  Swedes  and  Dutch  seem  to  have  paid  no  regard  to  the 
clainaof  Britain,  founded  on  the  first  discovery  of  Sebastian 
Cabot,  who  coasted  North -Am erica  ;  for  maugi-e  his  claim, 
the  Ditch  took  possession  of  the  country  of  New- York,  and 
the  S  vedes  of  Pennsylvania.  No  state  or  individual  ought 
to  have  regarded  it ;  for  no  expence,  enterprize,  or  labour 
of  a  nation,  or  of  any  individual,  can  give  a  right  which  in 
its  operation  would  defeat  the  end  in  view  by  the  Creator, 
which  was,  that  the  earth  be  fully  stocked  with  inhabitants. 
To  this  great  end,  every  claim  and  institution  of  a  partial 
nature  ought  to  be  subordinate.  The  claim  therefore  of 
the  first  adventurers  could  with  justice  only  be  to  so  much  of 
the  soil,  as  they  themselves  immediately  should  occupy, 
and  plant,  and  settle  with  inhabitants.— These  things  may  be 
said  plausibly  ;  but  it  is  to  be  considered  that  from  the  heart 
of  Asia  where  man  was  first  planted,  it  was  an  easy  thing 
to  emigrate  and  discover  new  countries.  Hence  it  is  that  a 
pretence  of  right,  from  the  first  discovery  of  a  country, 
would,  in  these  early  ages,  have  been  vain,  and  we  hear  no- 
thing of  it.  But  when  the  whole  eastern  continent,  and  the 
islands  of  the  coast  had  been  visited  and  planted,  it  became 
an  object  of  the  industry  of  man,  and  required  much  saga- 
city, fortitude,  and  persevcr?.nce  to  explore  the  ocean,  and 
effect  discoveries.  It  was  at  the  same  time  an  affair  of  no 
small  expence  to  fit  out  vessels  for  the  voyage. 

For  these  reasons  natural  justice  would  seem  to  give  to 
the  adventurers  not  only  a  priority  of  right  to  occupy  a 
newly  discovered  country,  but  also  a  right  to  demand 
from  others  some  consideration  in  services  or  monev  for 
admission  to  it. 

The  only  reason  to  be  urged  against  the  claim  from  dis- 
covery is,  that  it  is  not  favourable  to  the  population  of  the 
earth  that  individuals,  on  any  pretence  whatsoe\\*r,  should 
hold  a  greater  portion  of  the  soil,  than  is  necessary  for  their 
p?rtrcular  subs-stence.  But  it  is  to  be  considered,  that  it 
is  favourable  to  population,  because  it  is  unfavourable  to  the 


128  Law  MiscELLANifeg. 

discovery  of  unknown  regions  of  the  earth,  that  the  indi- 
vidual who  by  much  labour  and  expence  hath  effected  the 
discovery,  shall  nevertheless  enjoy  no  advantage  resulting 
from  his  ingenuity  and  enterprize,  but  a  priority  or  right 
to  occupy  an  equal  portion  of  the  soil  with  him  who,  led 
by  the  information  of  the  first  navigator,  shall  come  to  set- 
tle on  it.  The  best  argument  in  favour  of  the  right  of  a 
first  discoverer,  will  therefore  be,  that  by  giving  due  en- 
couragement to  men  who  shall  search  the  globe  by  sea  and 
land,  and  discover  new  soil,  the  whole  earth  will  become  peo- 
pled, and  it  seems  to  be  the  will  of  the  Creator,  that  the  whole 
earth  be  stocked  with  inhabitants. 


"  Tenant,  in  dower  is  where  the  husband  of  a  woman  is  seizeJ 
«  of  an  estate  of  inheritance  and  dies  ;  in  this  case  the  wife  shall 
"  have  the  third  part  of  all  the  lands  and  tenements  whereof  he 
"  was  seized  at  any  time  during  the  coverture,  to  hold  to  herself 
«forthetermof  hernatural  life."     2  Bl.  Com.  129. 

With  respect  to  dower,  the  act  of  Pennsylvrnia,  of  179^ 
adopts  the  quantum  allowed  by  the  common  law  where  there 
is 'a  widow  and  lawful  issue,  viz.  one  third  of  the  real  estate 
for  and  during  her  natural  life  ;  but  in  the  case  where  there  is 
a  widow  and  no  lawful  issue  there  is  a  different  provision. 
Sec.  4.  *'  If  the  intestate  shall  leave  a  widow,  and  no  lawful 
issue,  the  said  widow  shall  have  one  moiety  or  half  part  of 
the  real  estate,  including  the  mansion  house,  during  her  natu- 
ral life,  except  in  cases,  where,  in  the  judgment  of  the  Or- 
phan's court  the  estate  cannot  with  propriety  be  divided ; 
and  in  that  case  she  shall  have  and  receive  the  rents  and  pro- 
fits of  one  moiety  of  the  real  estate  during  hernatural  life.'* 

And  concerning  "  the  manner  in  which  a  woman  is  to  be 
endov/ed,"  by  the  same  act,  Sec.  22,  it  is  provided,  that  upon 
petition  presented  to  the  justices  of  the  Orphan's  court  of  the 
county  in  which  the  lands  lie,  by  the  widow  or  by  any  of  the 


Law  Miscellanies.  li29 

childfen  of  the  intestate,  or  guardian,  or  next  friends,  if  un- 
der age,  the  justices  are  empowered  to  appoint  seven  or  more 
persons,  indifferently  chosen,  on  behalf  and  with  consent  of 
the  parties,  or  where  the  parties  cannot  agree,  to  award  an 
inquest  to  make  partition ;  according  to  the  purport  and  true 
meaning  of  the  act. 

These  persons  having  made  the  inquisition  are  to  make 
a  return  of  it  to  the  justices  who  are  impowered  then  to 
give  judgment,  that  the  partition  thereby  made  do  remain 
firm  and  stable  for  ever. 

But,  where  the  estate,  &c.  cannot  be  divided  without 
prejudice  or  spoiling  the  whole,  the  said  seven  or  more  per- 
sons, or  the  said  inquest  as  the  case  may  be,  shall  make  a 
just  appraisement  thereof  to  the  Orphans  Court.  After  this, 
but  not  otherwise,  the  court  may  order  the  whole  to  the 
eldest  son,  or  any  of  the  other  sons  successively  if  they  ne- 
glect or  refuse ;  if  no  son,  or  all  neglect  or  refuse,  to  the  eld- 
est daughter,  &c.  in  the  same  manner^he,  she  or  they,  or  some 
friend  legally  authorised,  paying  to  the  other  children  their 
equal  and  proportionable  part  of  the  true  value  of  the  estate, 
according  to  the  appraisement. 

But  where  the  widow  is  living,  and  the  whole  premises 
are  so  adjudged,  she  shall  not  be  entitled  to  the  sum  at 
which  her  share  is  valued,  but  the  sum  and  the  interest  shall 
remain  charged  upon  the  premises,  the  child  to  whom  the 
estate  has  been  so  adjudged  to  pay  the  interest  annually  to 
the  mother  during  her  natural  life,  in  lieu  and  in  full  satis- 
faction for  her  dower  at  common  law. 

The  law  of  Pennsylvania  is  different  from  that  of  England, 
as  to  the  way  in  which  a  fern  me  covert  may  be  barred  of  her 
dower,  bj'  levying  a  fine,  or  suffering  a  recovery  of  the 
lands  during  her  coverture  ;  but  which  with  us  depends  up- 
on an  act  of  assembly  of  24  Feb.  1770,  which  is  by  appearing 
*'  before  one  of  the  judges  of  the  supreme  court,  or  before 
any  justice  of  the  county  court  of  common  pleas,  of  and  for 
the  county  wHere  the  estate  conveyed  lies,  and  to  acknow- 
ledge the  conveyance,  the  wife  being  examined  separate  and 

R 


f36  La^  Miscellanies. 

apart  from  her  husband,"  &c.  Whether  this  respects  the 
lands  of  the  femme  in  her  own  right  before  marriage  ;  or 
ht  r  right  of  dower  acquired  in  the  husband's  estate  by  her 
marriage  had  been  distinguished  ;  but  it  has  been  determin- 
ed by  the  supreme  court  with  a  reference  to  both.  For  this 
see  1  Bin.  470. 


"  How  dower  may  be  barred  or  prevented."  II  Bl.  Com  136. 

THE  question  of  a  devise  given  in  Hen  of  doxver  and  the 
enjoyment  of  the  devise,  and  which  might  be  construed  an 
acceptance  barring  dower  was  considered  by  the  court  in 
the  case  of  Webb  and  wife,  v.  Evans,  reported  1  Bin.  565, 
in  which  I  am  represented  as  concurring.  I  concurred  in 
holding  it  under  advisement^  but  not  in  giving  judgment;  but 
dissented  in  my  mind  from  the  opinion  of  Yeates  and  Smith 
justices,  and  during  the  vacation  had  drawn  up  my  reasons ; 
to  be  delivered  at  the  subsequent  term  ;  but  judgment  in  the 
mean  time  being  entered  on  the  opinion  of  these  judges  ; 
or  in  some  way  it  happened  that  I  had  not  an  opportunity. 
It  was  not  material,  as  my  dissent  would  not  have  altered 
the  decision  of  the  court.  Nor  did  I  dissent  so  much  from 
the  law  generally  as  laid  down,  but  in  the  application  of  it 
to  the  particular  case. 

But  what  1  take  to  be  a  very  material  alteration  of  the 
common  lawhy  our  act  of  assembly  of  the  4th  April,  1797, 
was  not  noticed  in  the  opinion  as  reported  of  the  court; 
and  for  that  reason  I  subjoin  my  note.  It  is  the  common 
laiv  "  that  where  a  devise  is  expressed  to  be  given  in  lieu 
and  satisfaction  of  dower ;  or  where  that  is  the  clear  and 
manifest  intention  of  the  testator,  the  wife  shall  not  have 
both,  but  shall  have  her  choice."  Harg.  Co.  Litt.  366.  By 
our  act  it  shall  be  taken  to  be  in  lieu  of  dower  unless  ex- 
pressed to  the  contrary.  My  note  on  the  case,  as  drawn  up 
^Yas  as  follows. 


i 


Law  Miscellanii.s.  13i 

"  It  is  impossible  for  me   to  entertain  any  doubt  in  this 
case  of  the  testator's    intention,  which  was  that  the  devises 
under  the  will  should   be    in  lieu  of  dower.     The  strongest 
circumstance  against  this,  is  the  limiting  the    use   of  part  of 
the  messuage,  and  providing  her  with  firewood,  and  keeping 
horse  and  cow,  &c.   to  the  time   during  which  she  shall  re- 
main a   widow;  which   might  lead  to   the    conclusion   that 
should  she  marrv,  she  might   determine  this  enjoyment  un- 
der the  will   and   recur  to  her  dower.     And   I  will  admit, 
that   I  know   of  nothing   on  principle    to   hinder    this  ;  for 
though  the  right  of  dower  accrues  on  the  death  of  the  hus- 
band, it  is  not  necessary   that  the    claim   be   made   on  the 
death  ;  and  certain  enjoyments  may  be  given,   and   used  in 
lieu  of  a  suspension  of  the   claim;  but  it  would  not  seem  to 
me  that  this  could  be  the  meaning  of  the  testator  here.   But 
that   he  limited   these    enjoyments    during   widowhood,    in 
consideration  that  on  marriage  even  should  that  happen  im- 
mediately on  his  decease  she  would  have  at  least  four  years 
and  eight  months  before  the   eldest  son  came  of  age  to  en- 
joy the  whole,   and  dispose   of  the  issues ;    and  seven  years 
more  to  enjoy  the  one  half,  before  the  youngest  son  was  of 
age,  and  after  these   sons  both    came  of  age,    if   married, 
she    would    have    a    husband    to   take   her    with    him ;  or 
having  had  the  issues  for  so  long  a  time,   she  could  pro- 
vide   for  herself  and  him  both.     It  is   true  she  would  have 
had  to  provide  in  the  mean  time   for  the   maintenance  and 
education  of  the  children ;  but  the  eldest   son,   who   would 
at    the  death  of  the  testator  have  been   turned  of  sixteen, 
could  have  been  no  charge,  on  either  of  these  accounts,  but 
must  have  been  worth  wages  at  work  on  the  plantation.  The 
second  son'turned  of  nine  years,  could  not  have  been  long, 
a  burthen,  but  on  the   contrary   soon  v/orth  more  than  his 
maintenance  and  education  :  such  education  as  the  testator*s 
grade  of  education  himself,  must  lead  us  to  presmne  he,  con- 
templated. 

The  legacies  to  the  three  daughters  were  not  payable,  but 
respectively  as  they  should  arrive  at  the  age  of  eighteen 
years.     Thq  eldest  then  of  the  age  of  thirteen,  and  somo 


132  Law  Miscellanies. 

months  ;  so  that  there  would  have  been  the  use  of  her  legacy 
£150  for  near  three  years  before  she  came  of  age,  and  also 
of  her  own  services,  which  considering  the  situation  in  life, 
of  the  testator,  and  the  customs  of  the  country,  must  have 
exceeded  her  support.  The  same  could  not  be  said  with  re- 
gard to  the  two  youngest  who  had  the  like  legacies  ;  but  who 
were  of  the  ages  of  not  more  than  four  and  two  years.  But 
the  inventory  of  the  personal  estate,  exclusive,  as  I  under- 
stand it,  of  what  was  specially  devised  to  herself,  for  though 
she  is  directed  to  appraise  the  personal  estate,  and  to  take  it 
at  a  moderate  valuation,  and  out  of  it  to  pay  legacies,  yet  he 
could  not  mean  that  it  should  be  necessary  to  appraise  what 
was  specifically  left  to  herself;  I  say  the  inventory  exclusive 
of  this,  and  paying  debts,  amounted  to  the  sum  of  ^^1000,  and 
taking  out  of  this  the  sum  of  £i50,  the  legacy  to  the  married 
daughter  Hannah,  there  would  remain  £  850  and  the  use  of 
this  until  the  three  younger  daughters  came  to  their  ages  re- 
spectively to  receive  their  legacies  ;  so  that  there  would  be 
considerable  pickings  out  of  this  property,  for  a  great  length 
of  time,  especially  when  we  take  into  view,  the  issues  of  the 
real  estate  in  her  possession,  in  a  part  of  the  country  of  good 
soil  and  generally  highly  cultivated,  and  not  far  from  mar- 
ket, being,  in  the  neighbourhood  of  Lancaster.  Adding  to 
all  this,  the  personal  estate  bequeathed  to  her,  I  can  enter- 
tain no  doubt  of  the  intention  of  the  testator  that  he  consi- 
dered himself  as  making  a  disposition  which  should  be  in 
lieu  of  dower ;  and  I  think  that  in  justice,  she  ought  so  to 
consider  it.  I  know  the  language  of  the  law,  that  to  bar 
the  claim  of  dower,  the  quantity  of  a  bequest  is  not  sufficient ; 
but  it  cannot  but  be  a  circumstance  that  will  weigh,  in  con- 
sidering the  intention.  But  this  is  not  the  only  circum- 
stance here  ;  for  though  I  will  not  say  that  the  dispositions 
are  absolutely  inconsistent  with  the  taking  dower  after  the 
youngest  of  the  two  sons  coming  of  age,  which  would  be  the 
time  at  farthest  that  she  would  be  likely  to  claim  it,  when  if 
married,  she  must  claim  it ;  for  in  that  case  her  use  of  the 
real  estate  would  determine  as  to  the  whole,  and  the  enjoy- 
ments provided  diinngher  widowhood,  wouW  ceaee  ,;  yet  ne- 


Law  Miscellanies.  133 

vertheless,  on  the  score  of  the  manifest  intention  of  the  tes- 
tator, and  her  taking  under  the  will  and  acting  under  it,  I 
would  hold  her  bound  by  it.  Dower  is  favoured  in  law ; 
and  a  good  deal,  from  the  early  times,  on  this  principle,  that 
the  personal  estate  was  usually  nothing,  and  it  was  on 
her  dower  only  that  the  widow,  could  be  supported.  Hence 
the  greater  care  in  the  provisions  of  the  law  for  facilitating 
the  recovery  of  dower,  and  the  liberality  in  the  decisions  of 
courts  in  favour  of  it,  the  application  of  the  strictness  of 
which  did  not  so  well  comport  with  a  different  nature  of  pro- 
perty ;  and  hence  an  act  of  the  legislature  of  this  state,  of  the 
4th  April,  1797,  Sec.  10,  which  provides  "that  if  any  testa- 
tor after  the  passing  of  this  act  shall  devise,  or  bequeath  to 
his  wife  any  portion  of  his  estate,  such  devise,  and  bequest 
shall  be  deemed  and  taken  to  be  in  lieu  and  bar  of  her  dower 
out  of  the  estate  of  her  deceased  husband,  in  like  manner 
sis  if  the  same  were  so  expressed,  unless  the  testator  shall 
by  his  last  will  and  testament  declare  otherwise,  any  law, 
usage,  or  custom  of  this  commonwealth  to  the  contrary  in 
anywise  notwithstanding."  In  this,  as  in  many  other  cases, 
the  legislature  has  been  under  the  necessity  of  changing  the 
law,  from  what  it  stood  on  decisions  ;  aud  perhaps  it  could  not 
trtherwise  be  done,  the  courts  thinking  themselves  bound  by 
what  had  been  determined  to  be  law  by  decisions  ;  though,  by 
the  by,  the  deci-sions  were  never  more  than  evidence  of  princi- 
ples, which  are  supposed  to  exist  in  the  law,  before  the  decision 
is  made  according  to  them.  But  accordingtothisevidence,that 
of  decisions,  the  courts  of  this  commonwealth  would  seem  to 
have  thought  themselves  bound  to  say,  that  notwithstanding 
the  evidence  of  intention,  if  not  express,  or  necessary,  and 
incontrovertible  from  circumstances  ;  or  inconsistent  with 
the  taking  under  the  will,  dower  should  not  be  barred ;  yet 
«o  far  as  my  knowledge  of  the  understanding  of  the  country 
went,  this  idea  of  the  law  was  contrary  to  the  general  under- 
standing ;  and  it  is  evinced  by  this  act  of  the  legislature 
which  I  take  to  be  precisely  recognizing  v/hat  was  the  ge- 
neral understanding.  For  surely  no  man  who  made  a  will, 
and  made  these  arrangements,  in  the  disposition  of  his  pro- 
perty, did  imagine  that  it  could  be  broken  in  upon,  or  that 


134  Law  Miscellanies. 

there  could  be  superadded  to  it,  a  legal  claim  of  dower.  I 
know  that  this  case  does  not  come  under  the  act  of  assenbly  ; 
but  I  think  myself  at  liberty  to  decide  it  in  the  spirit  of  it, 
and  that  latitude  which  I  take  it,  the  courts  are  warranted  to 
take  in  the  application  of  decisions  to  the  nature  of  circum- 
stances; and  it  is  in  this  sense  that  the  charter  to  William  Penn, 
grants  the  privilege  of  enacting  lav/s,  provided  nevertheless 
that  the  said  laws  be  consonant  to  reason^  and  (as  near  as  may 
be  conveniently)  agreeable  to  the  laws,  statutes,  &c.  of  Eng- 
land. And  I  take  it  that  the  courts  of  justice  which  by  the 
same  charter  the  legislature  of  the  province  had  a  right  to 
establish,  and  the  judges,  in  the  application  of  the  decisions 
of  the  common  law  must  be  considered  as  having  a  like 
latitude;  and  in  fact  it  would  seem  to  be  so  contemplated 
by  the  charter ;  for  the  word  "  laws"  in  this  section,  would 
seem  to  refer  to  the  decisions  of  the  courts  as  well  as  to  the 
acts  of  the  legislature.  It  is  only  the  common  law^  and 
such  of  the  statute  laws  of  England,  as  have  heretofore  been 
in  force,  that  after  the  declaration  of  our  independence,  is 
introduced  by  the  act  of  assembly  of  the  28th  of  Jan.  1777 
,  And  I  refer  the  '"''heretofore  in  force''*  to  the  v/ords  eonimon 
law,  as  well  as  to  the  statute  laws,  though  in  strict  gramma- 
tical construction,  it  can  refer  only  to  the  statute  laws ;  but 
there  is  the  same  reason,  for  a  reference  to  both  ;  and  I  ad- 
mit that  decisions  are  evidence,  and  I  will  not  contend  but 
that  they  may  be  evidence  of  the  most  weight  in  deciding 
what  of  the  common  law  was  in  force  in  the  province,  but 
they  are  not  the  only  evidence  ;  for  the  reason  of  him  who 
has  to  decide  on  the  application  of  a  principle  is  also  evii 
dence. 

But  without  overthrowing  English  decisions  ;  but  apply- 
ing without  an  adstriction  to  the  mere  letter,  I  cannot  but 
be  of  opinion  that  there  is  enough  in  the  circumstances 
of  this  case  to  warrant  the  inference  that  they  amount  to  a 
declaration  plain  of  the  testator's  intention  ;  and  though  the 
testator  could  not  by  his  will,  deprive  the  widow  of  her 
dower,  yet  as  she  has  an  interest  under  the  will  in  the  devise 
of  personal  estate,  and  a  great  interest  coupled  with  the  trust, 


Law  Miscellanies.  135' 

and  she  accepted  both,  it"  would  seem  that   she  ought  to  be 
considered  as  accepting  in  lieu  of  dower. 

But  supposing  the  widow  to  have  a  right  to  dower,  da- 
mages being  given,  and  the  dying  seised  having  been  found 
by  the  jury,  and  not  having  been  laid  in  the  declaration  so 
that  it  can  be  considered  as  found,  and  the  dying  seised,  or 
the  having  been  seised,  which  is  the  same  thing,  being  ne- 
cessary to  be  found,  to  entitle  to  damages,  I  need  not  consi- 
der this,  being  of  opinion  on  the  principal  point  that  the  ver* 
diet  ought  to  have  been  for  the  defendant. 


II  Black.  Com.  140. 

THE  calender  which  is  now  generally  adopted  in  the  chris- 
tian world,  owes  its  origin  to  Romulus.  Imagining  the  sun 
performed  J^is  course  through  all  the  seasons  in  304  days, 
he  divided  the  year  into  10  months,  making  it  to  begin  in  the 
spring  on  the  first  of  March.  Numa  giving  the  year  ^55 
days,  added  two  months,  and  transferred  the  beginning  of  the 
year  to  January.  As  this  was  still  making  the  year  too  short, 
intercalary  months  were  to  be  occasionally  added.  This 
producing  confusion,  Julius  Csesar  with  the  assistance  of  the 
mathematician  Sosigenus,  undertook  to  rectify  it.  Taking 
up  all  the  days  which  had  been  lost  by  the  former  method 
of  reckoning,  he  formed  one  long  year  of  15  months  or  445 
days.  After  this  had  terminated,  the  julimi  year  com- 
menced, January  1st.  B.  C.  46.  As  the  annual  revolution 
of  the  sun  is  completed  in  365  days  and  about  G  hours  he 
made  the  year  to  consist  of  365  days,  adding  a  day  ia 
every  4th  year,  to  the  23d  of  Feb.  or  the  6th  of  the  Ka- 
lends of  March,  which  was  to  be  tv/ice  reckoned.  Hence 
bissextile,  or  leap  year. 

The  Julian  year  however,  was  still  imperfect ;  for  as  the 
sun  perforins  his  annual  revolution  or  rather  the  earth  per- 
forms its  annual  revolution  round  the  sun,  not  exactly  in  865 


136  Law  MtscEiLANiet. 

days  6  hours,  but  in  365  days  5  hours,  48  minutes  and  4S\ 
seconds,  the  solar  year  was  shorter  than  the  civil  year  by 
11  min.  14|  sec.  which  in  the  space  of  about  130  years 
amounted  to  a  whole  day.  This  inconvenience  becoming 
in  the  course  of  time  too  considerable  to  be  unnoticed,  Pope 
Gregory  XIII.  after  unsuccessful  attempts  by  former 
Popes  and  councils,  abrogated  the  ancient  Calendar  and 
substituted  a  new  one  called  the  Gregorian  Calendar  or  new 
style.  Itwas  published  in  the  month  of  March,  A-  D.  1582. 
Ten  days  which  had  been  gained  by  the  old  reckoning  were 
taken  from  the  month  of  October  of  that  year,  and  the  equi- 
nox brought  back  to  the  21st  of  March  as  it  had  been  set- 
tled by  the  council  of  Nice,  A.  D.  325.  And  in  order  to 
prevent  a  recurrence  of  a  similar  variation,  every  succeed- 
ing hundredth  year  was  not  to  be  counted  a  leap  year,  except 
every  four  hundredth  year  which  should  as  usual  be  consider- 
ed as  a  bissextile.  Thus  by  making  the  years  1700,  1800, 
and  1900,  common  years  instead  of  leap  y.ars,  the  error 
arising  from  the  odd  time  would  be  corrected.  The  neW 
style  was  adopted  in  Spain,  Portugal,  and  part  of  Italy,  oft 
the  same  day  as  at  Rome  ;  but  it  was  not  received  in  France 
until  December,  when  the  10th  was  reckoned  the  20th  day^ 
according  to  letters  patent  of  Hen.  III.  In  Great  Britain 
such  were  the  popular  prejudices  against  it,  that  it  was  not 
easily  admitted.  However,  as  the  inconvenience  arising 
from  the  two  modes  of  reckoning  was  much  f«lt,  an  act 
of  parliament  in  1752  was  obtained  for  this  purpose.  As 
170  years  had  elapsed  since  the  Gregorian  alteration  took 
place,  the  old  style  had  consequently  gained  above  a  day  more 
upon  the  course  of  the  sun  than  it  had  when  Gregory  first  pro- 
mulged  his  alteration.  It  Avas  therefore  enacted  that  instead 
of  cancelling  10  days,  11  should  be  left  out  of  the  month  of 
September.  On  the  2d  day  of  that  month  the  old  style  ceas- 
ed and  the  next  instead  of  being  the  3d  was  called  the  14th. 
By  the  same  act  the  beginning  of  the  year  was  changed  from 
the  25th  of  March  to  the  first  of  January. 


Law  Miscellanies*  13/- 

By  an  act  of  the  assembly  of  Pennsylvania,  11th  March, 
I752y  the  act  of  parliament  entitled  "  an  act  for  regulating 
the  commencement  of  the  year,  and  for  correcting  the  calen- 
dar now  in  use,"  was  introduced,  which  provided,  "  that  in 
and  throughout  all  his  majesty's  dominions,  &c.  the  suppu- 
tation,  according  to  which,  the  year,  &c.  beginneth  on  the 
25th  of  March,  should  not  be  made  use  of  from  and  after  the 
last  day  of  December,  1751,  and  that  the  first  of  January  next 
following  the  said  last  day  of  December,  should  be  reckoned, 
&c.  to  be  the  first  day  of  the  year  1752,  and  so  on,  from  time 
to  time,  the  first  day  of  January'  in  every  year,  which  would 
happen  in  time  to  come  should  be  reckoned  the  first  day  of 
the  year ;  and  that  each  new  year  should  accordingly  com- 
mence and  begin  to  be  reckoned  from  the  first  day  of  every 
such  month  of  January  next,  preceding  the  25th  day  of 
March  on  which  the  year  would,  according  to  the  supputation 
aforesaid  have  begun  or  commenced  ;  and  that  all  acts,  deeds, 
&c.  &c.  &c.  which  should  be  made,  &c.  upon  or  after,  Sec.  to 
bear  date  according  to  the  new  method  of  supputation,  should 
be  judged  and  taken  as  valid  and  effectual  in  law,  as  if  ac- 
cording to  the  former  supputation." 

A  provision  is  made  in  the  same  law  relative  to  the  call- 
ing the  months^r*^  and  second^  &c.  for  the  ease  of  the  inhabi- 
tants of  the  then  province,  who  scrupled  to  call  the  names  of 
the  months  as  they  were  commonly  called  March,  Sec. 

It  had  excited  no  small  alarm  generally  among  the  unin- 
formed of  the  people,  to  talk  of  changing  the  date  of  the  year, 
and  many  scrupled  to  reckon  by  what  they  call  the  new  style. 
I  have  heard  it  said  myself  even  in  Pennsylvania,  that  they 
might  change  the  style,  but  they  could  not  change  the  sea- 
sons, for  the  winter  would  last  just  as  long  as  it  used  to  do, 
let  them  do  what  they  would.  It  was  even  thought  presump- 
tuous to  entertain  such  idea  as  the  changing  names  of  months, 
&c.  Ii  was  considered  to  have  its  origin  in  some  trick  of  the 
xnerchants  on  the  continent,  the  Venitians  in  particular,  for 
the  sake  of  interest  on  accounts.  I  remember  to  have  heard 
a  learned  Paisly  weaver,  as  he  thought  himself,  give  this  solu- 
tion of  the  problem. 

S 


138  Law  Miscellanies. 

"  The  nature  and  degrees  of  kindred  being  thus,  in  someinea* 

. ''  sure  explained,   I    shall  next  proceed  to  lay  down  a   series  of 

*'  rules,  oi  canons  of  inheritance,  according  to  which  estates  are 

"  transmitted  from  the  ancestor   to  the  heir,"  &c.     II  Bl.  Com. 

307. 

Land  in  Pennsylvania,  comes  to  the  heir,  or  representa- 
tives under  the  statute  of  distribution,  subject  to  the  debts' 
of  hhn  from  xuhom  the  estate  has  descended;  whereas  at  com- 
mon law  it  was  liable  only  to  debt  by  obligation ;  and  this 
where  the  ancestor  had  bound  himself  and  his  heirs.  An 
obligation  is  by  writing  unde»  s^ral;  and  differs  from  a  simple 
Gontracs  debt^  in  which  case  in  England  the  land  could  not  be 
bound  in  the  hand  of  the  heir.  "  When  a  man  binds  him- 
self and  his  heirs^  by  obligation  to  pay  a  certain  sum  at  a  day, 
and  dies,  it  is  at  the  election  of  the  obligee  to  sue  the  heir,  or 
the  executors,  or  administrators  of  the  obligor  ;  and  if  so  be 
that  the  executors  have  assets  in  their  hands,  yet  the  obligee 
may  sue  the  heir  if  he  will,  because  the  obligor  has  bound  as 
well  his  heir,  as  himself."*  Hence  the  form  of  an  obliga- 
tion, I  bind  myself  and  my  heirs ;  or  I  bind  myself,  my 
heirs,  executors,  and  administrators,  which  is  unmeaning  in 
Pt  nnsylvania,  where  a  man  binding  himself,  makes  his  re- 
presentatives liable,  under  every  denomination,  so  far  as  he 
has  left  lands  or  personal  property.  This  is  as  it  ought  to 
be,  notwithstanding  the  wife'^s  right  must  be  affected  by  the 
principle.  Lands  in  her  own  right  cannot  be  taken  for  debt 
lafter  the  death  of  the  husband,  nor  hi  his  lifetime  save  so  far 
as  affects  profits ;  nor  after  her  death  save  so  far  as  affects 
his  right  of  tenant  by  the  curtesy.  But  a  man  incurring 
debts  for  the  mutual  benefit  of  both,  as  it  must  be  supposed 
to  be,  the  law  presuming  a  consideration  received,  it  is  rea- 
sonablf?  that  the  wife's  right  of  dower  in  lands  not  in  her 
own  right,  should  be  holden  liable.  Nevertheless  it  is  an 
inconsistency  with  this  power  in  the  husband  to  subject  for 
debts,  that  he  cannot  alien  the  whole  without  the  consent  of 
the  wife.     It  must  be  a  voluntary  act  of  her  own,  to  convey 

*  For  all  the  learning  on  this  head,  see   2  Plow.  439  ;    and  S 
Tuck.  lii.  418.  •    ' 


Law  Miscfllanies.  13S 

land  in  her  own  right  or  otherwise,  so  as   to  affect  her  own 
right  of  dower. 

The  liability  of  real  estate  for  debts  in  Pennsylvania,  de- 
pends upon  laws  agreed  upon  in  England,  and  sundry  acts  ol 
assembly  of  the  colonial  provience,  directly  establishing,  or 
by  implication  recognizing  this  principle. 

By  the  statutes  of  distribution  in  the  case  of  intestates' 
estates,  and  particularly  by  that  of  the  19th  April,  1794,  great 
alterations  have  been  made  from  the  law  of  England.  "  Real 
estate  shall  be  distributed  to  the  lawful  children  of  the  intes- 
tate, such  children  always  to  inherit  and  enjoy  as  tenants  in 
common  in  equal  parts."  This  exclusive  of  the  wife's  right 
of  dower  in  one  tkird  for  and  during  her  natural  life.  In  esse 
the  person  dying  intestate  shall  leave  several  persons  law- 
ful issue  in  the  direct  line  of  lineal  descent  and  all  of  equal 
degree  to  the  person  so  dying  intestate,  the  said  estate  exclu- 
sive of  the  right  of  dower  in  the  widow,  shall  descend  and  be 
distributed  to  the  several  persons,  as  tenants  in  common  in 
equal  parts,  however  remote  from  the  intestate,  the  common 
degree  of  consanguinity  may  be,  in  the  same  manner  as  if 
they  were  all  daughters  of  the  person  so  dying  intestate : 
and  in  case  the  intestate  shall  leave  lawful  issue  of  different 
degrees  of  consanguinity  to  him,  or  her,  the  said  estate  shall 
descend  to  the  lawful  child,  or  children  of  the  intestate,  if 
either,  or  any  of  them  shall  be  then  living,  and  to  the  lawful 
issue  of  such  of  the  children  as  shall  be  then  dead,  leaving 
lawful  issue,  as  tenants  in  common,  in  equal  parts,  such  share 
only  as  would  have  descended  to  his  or  their  parent,  if  such 
parent  had  been  then  living ;  and  each  of  the  lawful  chil- 
dren of  the  intestate  always  to  inherit,  and  to  receive  such 
share  as  would  have  descended,  and  been  distributed  tohira, 
or  her,  if  all  the  children  of  the  intestate  who  shall  be  then 
dead,  leaving  lawful  issue,  had  been  living,  at  the  death  of 
the  intestate  :  and  if  there  be  no  child  of  the  intestate  living 
at  the  death  of  the  intestate,  and  only  a  grand-chdd,  or  grand*- 
children  who  shall  be  then  dead  leaving  lawful  issue,  then 
the  real  estate  shall  descend  to  such  grand-child,  or  grand- 
children of  the  intestate,  and  to  the  lawful  issue  of  such  of  tho 


140  Law  Miscellanies- 

grand  children  of  the  intestate  as  shall  be  then  dead,  leaving, 
issue  as  tenants  in  common,  such  issue  always  to  inherit  if 
one  person,  solely,  and  if  several  persons,  as  tenants  in  com- 
mon, in  equal  parts,  such  share  only  as  would  have  descended 
to  his,  h'.r,  or  their  parent,  if  such  parent  had  been  then  liv- 
ing. And  each  of  the  grand-children  of  the  person  so  dy- 
ing intestate,  who  shall  be  living  at  the  t.me  of  the  death  of 
the  intestate,  always  to  inherit  and  receive  such  share  as 
would  have  descended,  or  been  distributed  to  him,  or  her,  if 
all  the  grand-children  of  the  intestate  who  shall  be  then 
dead,  leaving  lawful  issue,  had  been  living  at  the  time  of 
the  death  of  the  intestate  and  the  same  law  of  inheritance 
and  distribution^  shall  be  observed  in  case  of  the  death  of 
the  grand-children,  and  other  descendants  to  the  remotest 
degree." 

The  words  distributed  and  distribution  refers  to  the  per- 
sonal estate  which  takes  the  like  course.  The  provisions 
are  interwoven,  and  are  the  same,  but  having  in  mind  only 
the  variations  from  the  law  of  England  in  the  case  of  real 
estate,  I  have  dropped  in  the  act  what  refers  to  personal* 

The  4th  Sec.  of  the  act  respects  the  intestate  leaving  n<r 
widow ;  or  leaving  a  widow,  and  no  lawful  issue.  Sec.  5. 
the  case  where  neithei  widow,  nor  lawful  issue  is  left,  but 
a  father.  Here  the  rule  of  the  common  law  "  shall  not  as- 
cend," is  departed  from,  and  material  alterations  made.  Sec. 
6.  respects  the  disposition  of  the  estate  after  the  death  of 
the  father^  where  it  has  so  ascended.  Sec.  7.  provides  where 
the  mother  shall  inherit.  Sec.  8.  where  there  is  no  widow, 
nor  issue.,  but  a  mother,  and  brother,  and  sister  of  their 
representatives.  Sec.  9,  treats  of  advancements  to  children. 
Sec.  10,  of  posthumous  children.  Sec.  11,  where  the  half 
blood  shall  inherit.     Sec.  12,  where  kindred  in  equal  degree. 

This  act  cannot  be  understood  as  having  given  a  final  blow 
to  the  feudal  system,  but  it  has  gone  a  great  way  towards  it. 
The  law  of  entails  must  go  before  our  law  of  the  tenure  of 
real  estate  can  be,  in  all  particulars,  accommodated  to  a  re- 
publican government. 


Law  Miscellanies.  141 

This  act,  I  speak  of  that  of  1794,  has  been  drawn  by  one 
who  has  had  a  comprehensive  view  of  the  system  of  the 
English  law  respecting  the  descent,  and  inheritance  of  real 
estate,  and  in  making  the  alterations  has  committed  no  error, 
wh'ch  it  is  of  all  things  the  most  difficult  to  avoid  where  a 
structure  is  to  be  altered,  and  a  part  taken  away,  or  sup- 
plied. For  hence  it  is  that  we  see  amendment  and  supple- 
ment without  end. 

But  this  will  serve  to  give  an  idea  of  what  I  mean.  A 
work  nan,  master  of  his  art,  has  the  whole  in  his  mind  before 
he  begins,  and  the  proportions  are  all  hit  at  once. 

This  act  has  been  drawn  by  one  who  has  understood  the  ar- 
rangement ofxuords^  which  is  one  standing  cause  of  the  obscu- 
rity of  our  acts  of  Assembly,  and  the  extreme  perplexity  of 
being  able  judicially  to  say  what  is  unequivocally  meant.  This 
act  is  invaluable  as  a  model  of  perspicuous  arrangement  and 
unambiguous  expression's.  I  might  say  of  the  acts  of  the  le- 
gislature generally,  had  they  said  all  things  so, 

"  O,  si  sic  omnia  dixissent." 

Might  it  not  be  advisable,  by  a  svipplement  to  the  laxv  of 
devises^  to  have  a  similar  provision,  viz.  "  That  xvhere  real 
or  personal  estate  is  devised^  and  the  devisee  dies  after  the 
death  of  the  testator^  but  before  the  contingency^  on  ruhich  he 
is  to  take,  happens^  his  lawful  issue  shall  take  per  capita,  or  by 
the  head,  what  is  devised  to  him.**  I  have  in  my  mind,  the 
decisions  in  the  case  of  the  lessee  of  Smith  against  Folwell,  I 
Bmney,  546.  It  is  true,  it  may  be  said,  that  the  testator 
may  provide  for  such  or  any  other  contingency ;  but  it  is  not 
within  the  foresight  of  common  persons  to  look  to  such  con- 
tingencies, and  provide  for  them  ;  and  they  are  not  aware  of 
Hhe  difficulty  on  the  rule  of  the  common  law,  of  taking  per 
stirpes,  or  by  the  stock,  and  not  per  capita,  or  by  the  head, 
which  is  in  the  way  of  representatives  succeeding  to  the  de- 
vise, as  may  be  seen  in  the  case  referred  to  in  the  report  which 
I  have  cited.  This  provision  perhaps,  with  another  relative 
to  the  construction  of  devises,  m'l^ht  be  the  subject  of  legisla- 
tive  interposition.     I  speak  of  that   much  agitated  ques- 


142  Law  Miscellanies. 

tion  in  England,  as  well  as  here,  what  shall  be  the  tjfctt 
of  technical  terms  in  a  last  will  and  testament.  See  2  Bin- 
ney,  13  ;  3  Binney,  374,  and  other  cases  in  our  reports  and 
decisions  under  this  head. 

I  did  not  take  notice  in  the  early  part  of  this  note,  that 
by  the  common  law  the  king's  prerogative  extended  to  the 
lands  of  the  debtor;  though  b)'  the  statute  of  magna  charta 
this  pi-erogative  was  restrained  to  the  taking  the  lands  of  the 
king's  debtor,  only  where  goods  and  chattels  were  dejicient. 
But  by  the  statute  33  H.  8.  c.  39.  this  prerogative  was  restor- 
ed; and  perhaps  enlarged irova  what  it  was  at  common  law; 
but  not  carried  so  far  as  would  seem  to  be  by  the  laws  of  the 
United  States  and  the  decisions  of  their  courts  in  case  of  a 
preference  in  the  payment  of  debts.  Judgments  in  the  case 
of  z private  person  take  place  of  the  king's  debts  by  obliga- 
tion, short  of  a  judgment. 

Lands  descend  therefore  in  England  subject  to  the  debts 
of  the  ancestor  by  obligation^  where  the  htir  is  named,  and  in 
the  case  of  the  king's  debt  by  obligation,  whether  named  or 
not ;  and  this  by  force  of  the  statute  in  that  case  provided. 

It  may  serve  to  gire  a  clearer  view  of  the  subject,  to 
contrast  the  rules  of  inheritance,  as  laid  down  by  Blackstone, 
with  the  changes  by  our  act  of  assembly. 

The  first  rule,  says  the  commentator,  is,  that "  inheritances 
shall  lineally  descend  to  the  issue  of  the  person  who  died 
last  seised,  in  infinitum;  but  shall  never  lineally  ascend.' 

By  our  act,  sec.  6.  if  the  intestate  die,  leaving  neither 
widow  nor  lawful  issue,  but  leaving  a  father,  the  whole  of  the 
real  estate  shall  be  enjoyed  by  the  father  of  the  intestate,  for, 
and  during  his  natural  life. 

In  like  manner,  Sec.  7.  if  the  intestate  die  leaving  nei- 
ther widow  nor  lawful  issue  nor  father,  but  leaving  a  mother, 
the  whole  of  the  real  estate  shall  be  enjoyed  by  the  mother^ 
for,  and  during  her  natural  life. 

At  the  end  of  the  same  Sec.  it  is  provided  that  if  *'  the 
intestate  shall  leave  no  brothers  or  sisters,  nor  their  represen- 
tatives, then  the  estate  shall  go  to  the  father  in  fee  simple, 
unless  where  the  estate  has  descended  from  the  part  of  the 
mother." 


La-w  Miscellanies.  143 

In  a  supplement  to  the  above  act,  passed  1797,  it  ispro^ 
vided  in  Sec.  5,  that  if  an)'  intestate  shall  die  seised  of  real 
estate  in  fee  simple,  and  shall  leave  no  widow,  nor  lawful 
issue,  father,  brother,  sister,  or  their  j^epresentatives,  then 
the  said  estate  shall  go  and  be  vested  in  fee  simple  in  the 
mother,  unless  where  such  estate  has  descended  from  the 
part  of  the  father,  in  which  case  it,  or  such  part  thereof  as 
shall  have  come  from  the  part  of  his  ©r  her  father,  shall  pass 
and  be  enjoyed,  as  if  such  person,  so  dying  seised,  had  sur- 
vived his  or  her  mother. 

2d.  "  The  male  issue  shall  be  admitted  before  the  fe- 
male." 

In  Pennsylvania  no  preference  is  given  to  the  male  issue, 
but  all  the  children,  lawful  issue,  or  their  representatives,  are 
entitled  to  succeed  to  equal  parts  of  the  real  estate,  and  hold 
as  tenants  in  common. 

3d.  "  Where  there  are  two  or  more  males  in  equal  de- 
gi-ee  ;  the  eldest  only  shall  inherit ;  but  the  females  altoge- 
ther." 

The  provisions  of  our  act  have  changed  this  rule.  With 
us  there  is  no  such  tiling  as  the  right  of  primogeniture  ;  and 
the  males  as  well  as  females  inherit  equal  parts. 

4th.  *' The  lineal  descendants,  in  hifinitum^  o£ any  iperson 
deceased  shall  represent  their  ancestor;  that  is,  shall  stand 
in  the  same  place  as  the  person  himself  would  have  done, 
had  he  been  living." 

Our  act  adopts  this  canon,  but  in  the  application  of  the 
rule,  there  is  no  preference  of  the  eldest  son  or  his  represen- 
tatives, as  in  England.  In  Pennsylvania  all  the  children, 
grand-children,  or  great-grand-children,  as  they  succeed  to 
the  inheritance,  take  equal  shares,  regarding  in  the  distribu- 
tion the  method  of  inheriting /Jc'r  stirpes  by  the  roots. 

5th.  "  On  failure  of  lineal  descendants,  or  issue,  of  the 
person  last  seised,  the  inheritance  shall  descend  to  his  colla- 
eral  relations  ;  subject  to  the  three  preceding  rules." 

By  our  act,  when  the  lineal  descendants  are  exhausted, 
the  father  or  mother  succeed,  and  where  there  are  brothers 
Qjnd  sisters  the  real  estate  f.hall  descend  to  and  be  enioved  h\ 


f44  "Law  Miscellanies. 

the  brothers  and  sisters  of  the  intestate,  or  their  representa- 
tives, after  the  decease  of  the  father  or  mother,  as  tenants 
in  common,  in  equal  parts. 

"  Bet7ig  of  the  blood  of  the  first  purchaser.'''* 
The  Jews,  Greeks,  and  Romans  looked  no  farther  than 
the  person  who  died  seised  of  the  estate.  The  looking  back 
to  the  first  purchaser,  is  derived  from  the  feudal  system,  and 
I  presume  is  not  a  rule  in  Pennsylvania,  except  in  the  case 
where  the  brothers  and  sisters  or  representatives  of  the  half* 
blood,  being  otherwise  entitled  to  inherit,  cannot  take  where 
the  inheritance  came  to  the  intestate  by  descent,  devise,  or 
gift,  of  some  one  of  his  or  her  ancestors,  in  which  case  all 
those,  who  are  not  of  the  blood  of  such  ancestor,  shall  be  ex- 
cluded from  the  inheritance. 

6th.  "The  collateral  heir  of  the  person  last  seised  must 
be  his  next  collateral  kinsman  of  the  whole  blood." 

By  our  act  the  half  blood  are  not  totally  excluded.  By 
Sec.  2.  on  failure  of  lawful  issue,  father  or  mother,  brothers 
©r  sisters,  or  their  lawful  issue,  of  the  whole  blood,  then  bro- 
thers and  sisters  of  the  half  blood,  and  their  lawful  issue,  shall 
inherit  the  same  as  aforesaid,  in  preference  to  the  more  re- 
mote kindred  ef  the  whole  blood,  unless  where  such  inheri- 
tance came  to  the  person  so  seised  by  descent,  devise,  or  gift 
of  some  one  of  his  or  her  ancestors,  in  which  case  all  those, 
who  are  not  of  the  blood  of  such  ancestor,  shall  be  excluded 
from  such  inheritance. 

And  by  a  supplement  to  this  act,  1797,  Sec.  7.  "if  there 
are  no  lawful  issue,  widow,  father  or  mother,  brothers  or  sis- 
ters,-or  their  representatives,  of  the  whole  blood,  then  bro- 
thers and  sisters  of  the  half  blood  shall  inherit  the  said  real 
estate  in  fee  simple,  &:c.  as  tenants  in  common,  in  equal  pans, 
except  such  parts  of  the  real  estate  as  came  to  such  intestate 
by  descent,  devise  or  gift  of  some  one  of  his  or  her  ancestors, 
in  which  case,  all  those  who  are  not  of  the  blood  of  such  an- 
cestor, shall  be  excluded  from  such  inheritance,  and  such 
part  of  the  real  estate." 

7th.  "  In  collateral  inheritances  the  male  stocks  shall  be 
preferred  to  the  female  ;    (that   is,  kindred  derived  from  the 


Law  Miscellanies*  145 

blood  of  the  male  ancestors,  however  remote,  shall  be  admit- 
ted before  those  from  the  blood  of  the  female,  however  near) 
unless  where  the  lands  have,  in  fact,  descended  from  a  fe- 
male." 

By  our  act  is  given  no  preference  to  the  males  in  lineal 
succession,  nor  in  the  succession  of  collaterals. 

This  last,  will  seem  in  some  degree  to  be  but  a  repeti- 
tion of  what  precedes  ;  but  giving  a  different  view  by  means 
of  the  contrast,  it  will  be  of  use  to  the  student.  For  of  all 
things  it  is  the  most  difficult  to  get  an  impression  made  upon 
the  understanding  or  the  memory,  where  the  rules  are  mere- 
ly abstract,  and  little  depending  upon  natural  reason.  There 
must  be  "  line  upon  line,  precept  upon  precept,  here  a  little 
and  there  a  little  ;"  and  this  is  the  great  secret  of  indoctri- 
nating the  early  mind  in  any  science. 


«  The  fourth  species  of  assurance,  by  matter  of  record,  is  ft 
<^  common  recovery."     II  BI.  Com.  357. 

The  statutes  of  entail,  were  i-npliedly  recognized  as  ex- 
tending to  Pennsylvania  by  the  act  of  27  Jan.  '49,  '50,  entit- 
led an  act  baring  estates  tail,  1  Smith's  laws,  203.  The  pre- 
amble is,  that,  "  forasmuch  as  the  entailing  of  estates  without 
a  proviso  by  law  for  baring  them,  would  introduce  perpetui- 
ties, prevent  the  improvement  of  such  estates,  disable  tenants 
in  tail  to  make  provision  for  the  younger  branches  of  their 
families,  prove  of  general  detriment,  and  be  attended  with 
manifold  inconveniences,  for  preventing  thereof,"  S:c. 

By  this  act,  the  recoveries  before  suffered^  were  valida- 
ted and  confirmed  as  well  as  those  thereafter  to  be  made. 

But  by  an  act  16  Jan.  1799,  entitled  "an  act  to  facilitate 
the  baring  entails,"  it  is  provided  "  that  whereas  common 
recoveries  are  now  considered  as  a  mode  of  ccnveyancty  by 
which  tenants  in  tail,  are  enabled  to  convey  and  dispose  of 
tlieir  lands  and  tenements  ;  but,  the  said  mode  of  convey- 

T 


146  Law  Miscellanies. 

ance  is  attended  with  a  heavy  expence,  and,  in  many  caseSf 
with  great  inconvenience.     Be  it  enacted,"  &c. 

In  consideration  of  these  acts  of  the  legislature,  not  only 
recognizing  the  statutes  of  entail  as  introduced  m  Pennsylva- 
nia, but  having  rendered  the  baring  them  so  easy,  by  a  mere 
deed  of  conveyance,  &c.  I  did  not  withhold  my  signature 
from  the  report  of  the  judges^  on  the  subject  of  the  English  sta^ 
tutes  ;  but  I  have  had,  since,  reason  to  wish  that  I  had  noted 
an  exception  with  regard  to  the  statutes  of  entail.  My  rea- 
sons of  which  I  was  not  then  aware,  and  which  in  great  part 
did  not  exist,  at  least  so  strongly  in  my  view,  will  be  seen 
from  my  dissent  in  several  cases,  Binney's  reports,  where 
the  questions  were  under  devises^  whether  an  estate  in  fee, 
or  in  tail  was  taken.  It  will  be  seen  in  these  cases,  that  the 
judges,  from  whose  opinion  I  dissented^  not  only  adopted 
the  strictest  rules  of  the  English  courts  in  the  construction 
of  devises  j  but  as  I  would  seem  to  have  thought,  even  in 
the  application  of  the  rides  to  the  particular  case.  This  how- 
ever would  be  only  matter  of  opinion  with  me,  and  must  be 
judged  of  by  others,  on  the  strength  of  the  reasons  given* 
But  certain  it  is,  that  the  court  adopted,  in  its  utmost  strict- 
ness, the  English  rule,  that  where  a  technical  term  is  used, 
the  devisor  shall  be  presumed  to  mean  it  in  the  technical  sense^ 
unless  it  caji  be  collected  from  other  parts  of  the  will,  that  he 
did  not  mean  it  in  a  technical  sense,  I  would  just  reverse  this 
rule;  viz.  that  a  devisor  shall  not  be  presumed  to  use  a  word 
in  a  technical  sense,  unless  it  can  be  collected  from  the  whole 
of  the  will,  that  he  did  mean  so  to  use  it. 

We  all  know  who  are  the  usual  scriveners,  or  drawers- 
np  of  last  wills  and  testaments  in  Pennsylvania;  the 
«chool-master  of  the  neighbourhood;  a  commissioned 
justice  of  the  peace,  or  some  one  that  has  been  about  the 
courts  and  has  some  reputation  for  clerkship.  TTie  school- 
master has  his  Clerks'  Assistant,  or  vade  mecum,  or  some 
book  of  bad  precedents^  from  which  he  picks  terms  without 
distinguishing  the  use  :  the  justice  in  like  manner,  or  other 
person,  little  learned  in  the  law,  and  yet  affecting  much.  The 
terms,  heir,  issue,  begotten,  &c.  get  in,  or  the  arrangement 


Law  Miscellanies.  147 

«F  the  words,  by  implication  is  such  as  to  be  construed  to 
mean  what  in  fact  never  was  intended.  I  am  thtrelore  of 
opinion  to  abolish  the  entailing  estates  altogether. 

The  person  taking  the  estate,  not  dreaming  that  he  was 
an  heir  in  tail  never  thinks  of  baring  it ;  but  conveys  it  to  an 
innocent  purchaser,  who  makes  improvements,  and  at  a  distant 
period,  a  defendant  looking  at  the  will,  or  some  one  for  him, 
finds  it  out  that  he  may  claim  the  estate  as  entailed  Mn^Qx  the. 
devise,  and  takes  it  with  all  the  labour  of  the  purchaser,  the 
julges  declaring  it  an  estate  tail,  by  reason  of  a  technical 
term,  or  arrangement  of  words,  that  by  implication,  would 
seem  to  make  it  such*     These  things  ought  not  to  be  so. 

"  Entails*'  says  judge  Tucker  in  his  note,  2  Bl.  Com. 
119.  "were  formerly  greatly  favoured  in  Virginia;  the 
statute  de  donis  conditionalihis^  extending  to  the  colony, 
no  act  of  assembly  authorising  entails  of  lands,  occurs  in 
our  code.  In  ITIO,  as  we  have  seen,  they  were  pro- 
tected from  being  defeated  by  a  fine  and  recovery.  In 
1727,  slaves  were  subjected  to  limitations  in  tail,  by  being 
annexed  to  lands  entailed,  and  were  to  descend  and  pass 
in  possession,  reversion,  and  remainder,  with  the  lands 
themselves,  c.  4.  Sec.  12.  Edi.  1769.  By  the  act  of  1734, 
c.  6,  Sessions  acts,  an  abstract  of  which  is  preserved  in  Mer- 
cer's abridgment,  title,  entails,  "  any  person  seised  in  fee- 
**  tail  of  any  lands,  tenements,  or  hereditaments,  not  exceed- 
"  ing  the  value  of  £'2.00  sterling,  and  not  being  parcel  of, 
"  or  contiguous  to  other  entailed  lands  of  the  same  party, 
**  might  sue  out  a  writ  from  the  secretarj^'s  office  in  the  na- 
**  ture  of  an  ad  quod  damnum  to  the  sheriff  of  the  county, 
"  commanding  him  to  inquire,  by  the  oaths  of  good  and 
^'  lawful  men  of  his  county,  of  the  value  of  such  lands,  and 
"  whether,  &c.  and  if  such  lands  shall  be  found  not  to  exceed 
^'  the  value  as  aforesaid,  and  to  be  a  separate  parcel,  and  an 
"  inquisition  to  that  effect  be  made  and  returned  to  the  office, 
"  then  a  deed  of  bargain  and  sale  reciting  the  title,  and  such 
**  inquisition,  wherein  a  valuable  consideration  shall  bt;  cx- 
"  pressed,  and  bona  Jidc  paid,  acknowledged,  or  proved 
*♦  by  three  witnesses,  before  the  general  court,  within  eight 


148  Law  Miscellanies. 

**  months  after  the  date  thereof,  should  be  sufficient  in  law 
**  to  pass  the  fee  simple  estate  to  the  purchaser,  and  the 
*'  right  of  the  issue  of  the  vender,  and  all  other  persons  in 
"  remainder  or  reversion,  should  be  barred,  Sec."  This  act 
was  amended  by  the  act  of  1748,  c.  1.  §.  16,  which  requires 
the  surveyor  of  the  county  to  attend  and  survey  the  lands 
in  the  presence  of  the  jury,  and  to  give  them  an  account  of 
the  number  of  acres.  And  where  the  tenant  in  tail  had  no 
issue  capable  of  inheriting  the  lands,  if  there  were  a  remain- 
der over,  the  remainder  man,  or,  if  an  infant,  his  guardian 
or  next  friend  should  have  notice  to  attend  the  survey,  and 
see  that  the  valuation  was  fairly  made ;  and  the  deed  of  bar- 
gain and  sale  was  to  be  recorded  in  the  general  court  within 
eight  months.  Edi.  1769.  Estates,  above  the  value  of  ^i^ 200 
sterling,  were  barred  by  private  acts  of  assembly  passed  for 
that  special  purpose." 

**  But  when  the  revolution  took  place,  a  different  mode  of 
thinking  succeeded ;  it  was  found  that  entails  would  be  the 
means  of  accumulating  and  preserving  great  estates  in  cer- 
tain families,  which  would,  not  only  introduce  all  the  evils 
complained  of  in  England,  but  be  utterly  incompatible  with 
the  genius  and  spirit  of  our  constitution  and  government. 
At  the  first  session,  therefore,  after  the  declaration  of  inde- 
pendence, an  act  passed,  declaring  tenants  of  lands,  or  slaves 
in  tail,  to  hold  the  same  in  fee  simple.  This  act  avoids  all 
estates  tail  in  possession,  reversion,  or  remainder  theretofore 
created  by  deed,  will,  act  of  assembly,  or  any  other  ways  or 
means,  or  thereafter  to  be  created,  any  words, limitations,  or^ 
conditions  in  the  deed,  will,  or  act  of  assembly,  or  other  in» 
strument  to  the  contrary  notwithstanding;  and  further  de- 
clares, that  every  estate,  so  created,  shall  be  held  in  full  and 
absolute  fee  simple.  This  act  is  further  confirmed  by  the 
acts  of  1 785  and  1 792,  which  declare,  that  every  estate  in 
lands  which  hath  been  limited  since  the  seventh  day  of  Octo- 
ber, 1776,  or  hereafter,  shall  be  limited,  so  that  as  the  law 
itforetimc  v/as,  such  estate  would  have  been  an  estate  tail, 
shall  be  deemed  to  have  been,  and  continue  an  estate  in  fee 
simple*    The  act  of  May,  1783,  declares,  that  all  estates  ip 


Law  Miscellakies.  149 

lands  or  slaves  which  have  become,  or  shall  become  escheat- 
able  to  the  commonwealth,  by  virtue  of  the  "  act  declaring 
tenants  of  lands  or  slaves  in  tail,  to  hold  the  same  in  fee  sim- 
ple," for  defect  of  blood,  shall  descend,  and  be  deemed  to 
have  descended  agreeable  to  the  limitations  of  the  deed  or 
will  creating  the  same.  But  that  act  does  not  extend  to 
lands  or  slaves  which  had  been  escheated  and  sold.  L.  V. 
Oct.  1776,  c.  26  May  1783,  c.  27.  Edi.  1785.  Sessions 
acts  of  1785,  c.  62.  Edi.  1794,  c.  90.  Sect.  9,  10,  11." 

"  In  the  construction  of  these  acts,  it  has  been  decided,  that 
by  the  act  of  October  1776,  for  docking  entails,  all  remain- 
ders, as  well  contingent  as  vested,  are  utterly  barred,  whe- 
ther the  entail  be  created  before  or  after  passing  the  act. 
And  though  executory  devises  of  lands,  after  a  devise  there- 
of in  fee  simple,  may  still  be  created  as  before  that  statute, 
yet  the  court  will  not,  in  order  to  avoid  the  effect  of  the  sta- 
tute, construe  that  to  be  an  executory  devise,  which,  before, 
would  have  been  held  to  be  a  contingent  remainder.  Carter, 
vs.  Tyler,  and  also  1  Call's  Rep.  165.* 

*'  And  in  this  case,  Pendleton,  president,  said,  a  parent  may 
guard  against  an  improvident  child's  wasting  his  estate,  by 
limiting  his  interest  in,  or  power  ovei*  it.  He  may  give  an 
estate  for  life,  and  limit  remainders  over,  upon  it ;  but  how 
far  he  may  go  in  limiting  estates  for  life,  one  after  another, 
so  as  to  effect  a  perpetuity,  we  leave  to  be  decided  v,hen  the 
experiment  shall  be  made.  At  present,  we  can  safely  say, 
that  whenever  the  conveyance  gives  an  estate-tail  in  lands, 
the  act  vests  in  that  tenant,  an  estate  in  fee  simple.  Ibi- 
dem, 185." 

"See  also  Hunters  v.  Haynes.  1  Wash.  Rep.  71.  Where 
a  devise  to  A.  for  life,  with  remainder  to  B.  and  the  heirs 
of  his  body  lawfully  begotten  forever ;  but  in  case  B.  should  die 
without  such  issue^  then  to  C.  and  his  heirs  for  ever.  In  this  case 
the  court  decided,  that  although  B.  died  without  issue  in  the 
life-time  of  A.  yet  his  next  heir  should  have  the  land  in  pre- 
ference to  C.  the  next  remainder  man.  For,  by  the  opera- 
tion of  the  act  of  1776,  B's  vested  remainder  in  tail,  was  turn- 
ed into  an  absolute  fee  simple,  and  descended  to  his  heirs  af- 
tsr  the  death  of  the  tenant  for  life.*' 


150  Law  Miscellanies* 

"  We  have  now  considered  the  several  species  of  common  as- 
"  suranccs,  whcicby  a  title  to  lands  and  tenements  may  be  trans- 
**  ferred  and  conveyed  from  one  man  to  another.  But  before  \vc 
"  conchuk-  this  head,  it  may  not  be  improper  to  take  notice  of  a 
«  few  general  rules  and  maxims,  which  have  been  laid  down  by 
*'  courts  of  justice,  for  the  construction  and  exposition  of  them  all." 
II  BI.  Com.  379. 

There  has  been  no  point  of  law  upon  which  I  have  been 
more  dissatisfied  with  the  decisions  of  the  English  judges 
than  with  regard  to  the  construction  of  last  wills  and  testa- 
ments. The  rule  w  hich  they  have  laid  down,  and  their  rea- 
soning upon  it,  or  application  of  it,  is  so  inconsistent  and  con- 
tradictory, that  I  have  been  at  a  loss  to  know  what  to  make 
of  it.  According  to  one,  the  technical  term  is  to  govern ;  ac- 
cording to  another,  the  intention  is  to  govern  ;  or  the  con- 
struction is  to  be  a  compound  of  both.  The  only  judge,  or 
elementary  writer,  that  I  find  to  speak  common  sense  on  the 
subject,  is  Hargrave,  in  his  observations,  concerning  the  rule 
in  Shelly's  case,  in  which  I  am  happy  to  find  my  own  way  o£ 
thinking  on  the  subject  perfectly  established.  Harg.  Tracts, 
574. 

His  language  is,  "  Surely  the  rules  of  interpreting  words 
must  be  the  same  throughout.  If  a  single  word  or  a  whole 
sentence,  has,  by  habit,  obtained  an  appropriate  sense,  the 
law  ought  to  presume  in  favour  of  that  sense  in  preference 
to  any  other ;  unless  from  other  passages  in  the  same  instru- 
ment, or  from  some  peculiar  circumstances  attend'mg  the  case, 
there  is  evidence  sufficient  to  satisfy  the  mind  of  the  judge, 
that  the  author  of  the  instrument  under  consideration  really 
intended  to  convey  a  different  meaning.  For  the  sake  of 
preventing  the  assumption  of  a  boundless  and  arbitrary  dis- 
cretion, it  is  fit  that  great  respect  should  be  shown  to  former 
idecisions  as  to  the  weight  of  evidence  requisite  to  repel  the 
legal  or  technical  sense  of  words,  but  some  discretion  must  ne^ 
c^essarily  be  left ;  because  to  insist  that  men  shall  only  vse 
ivords  in  one  certain  sense  worddbe  a  mo7istrous  tyranny  y 
nnd  there  is  such  an  infinite  variety  in  the  lanscuage  and  cir- 
tuinstancei  which  may  occur  to  distinguvih  one  case  from  and- 


LA^  MiseELLAKlES.  151 

Sker,  thaty  to  lay  dozvn  one  general  rule  of  interpretation  so 
absolute  as  to  be  indispensible^  would  be  making  legal  interpret 
fatten  to  torture  Hie  the  bed  of  the  fabulous  attic  robber  Frocus- 
tes^  and  so,  every  instrument  would  be  cruelly  stretched  or  cur- 
tailed  iJito  the  same  meaning.  All  this  is  plain  sense  as  to  the 
interpretation  of  wards,  and,  more  or  less  ever  has  been,  the 
language  of  our  judges  in  deciding  upon  conveyances  and 
written  instruments  of  every  kind,  with,  however,  a  peculiar 
extension  of  indulgence  to  last  wills  and  testaments." 

But  when  they  come  to  construe,  or  apply  the  rule,  even 
judge  Blackstone,  in  the  case  of  Perrin  and  Blake  talks  of 
rules  more  or  less  flexible,  accommodating  or  obedient  \^\i\c\\  I 
cannot  comprehend  ;  and  I  am  happy  to  find  that  Hargrave  ia 
his  observations  is  of  the  same  opinion.  Intention  or  techni- 
cal term  must  govern  ;  there  cannot  be  a  compound  of  both*. 
It  has  been  on  this  principle  that  I  have  been  under  the  ne- 
cessity of  dissenting  in  some  cases  of  a  devise  of  real  estate, 
from  the  decision  of  the  court  of  which  I  am  a  member,  look- 
ing at  a  will  as  I  would  at  any  other  writing  by  persons  not 
supposed  to  know  any  thing  about  law  terms ;  and  also  look- 
ing at  all  that  can  be  collected  from  the  will  relative  to  the 
family  of  the  devisor,  and  the  nature  of  the  property  devised. 
Dvihors  the  will  I  would  not  go  ;  or  bring  evidence  aliunde 
as  to  the  construction;  and  this  is  the  only  limit  I  would  put 
to  my  interpretation.  I  would  certainly  consider,  whether, 
from  the  language  of  the  will,  it  appears  to  have  been  drawn 
by  a  person  technically  learned  or  otherwise ;  and  I  would 
assist  myself  by  what  I  could  collect,  or  had  collected  of  ihc 
popular  use  of  terms  ;  as  also  of  the  common  usage  in  em- 
ploying persons  to  draw  wills,  such  as  schoolmasters,  or  half 
learned  persons  in  the  society  where  the  will  was  drawn. 
There  are  a  variety  of  things  I  would  consider  ;  in  short 
from  whatever  sources  I  might  draw  my  knowledge  or  in- 
formation, I  would  take  up  a  will  as  I  would  a  letter  or  any 
other  paper  coming  from  the  person,  and  inquire  what  wais 
meant.  Intention  with  me  should  be  absolute  ;  and  I  would 
^tter  it  with  nothing  deducible  from  art  or  science  of  which 


152  Law  Miscelianiej. 

I  could  not  suppose  the  person  writing  to  have  a  correct  Icnow* 
ledge. 

Under  this  head  let  me  refer  to  judge  Tucker's  note,  2 
Bl.  Com.  381 ;  particularly  the  remarks  which  he  cites  from 
Pendleton,  president,  to  wit,  "that  the  intention  ef  the  tes- 
tator is  declared  by  all  the  judges  both  ancient  and  modem, 
to  give  the  rule  of  construction  :  but  after  laying  down  the 
true  rule  built  upon  intention.,  they  admit  that  if  there  were 
no  words  of  limitation,  the  common  law  rule  must  prevail ; 
by  which  they  tied  a  gordian  knot,  which  they  have  since 
struggled  to  untie.  It  would  have  been  better  to  have  cut  it 
at  once." 

He  cites  1  Wash.  Rep.  102,  103, 271, 302, 338.     1  Callus 
Rep.  13,  14,  16,  illustrating  this  that  the  intention  must  be 
collected  from  the  will  itself;  "  which  is  true,"  says  he,  "  if 
we  admit  those  words  to  be  explained  by  the  relative  situa- 
tion of  the  parties  ;  and  the  circumstances  of  the  testator  i 
which  a  multiplicity  of  cases  prove  ought  to  be  considered* 
But  it  is  said,  the  intention  is  not  to  prevail  against  settled  and 
Jixed  rules  of  construction.     If  we  could  discover  those  set- 
tled rules,  continues  the  president,  we  would  pursue  them  ; 
but,  after  all    our  researches,  we  are  much  inclined   to    af- 
firm what  was  said  by  judge  Wilmot,  3  Bur.  1533,  that  cases 
on  wills  served  rather  to  obscure,  than  illumine  questions  of 
this  sort.     So  it  is  said  by  the  court,  3  Wil.  141.  that  cases 
on  wills    may  guide  as   to    general  rules  of  construction, 
but,  unless  a  case  cited,  be,  in  every  respect,  directly  in  pointy 
and  agree  in  every  circumstance^  it  will  have  little  or  no  weight 
with  the  court,  who  always  look  upon  the  intentio7i  of  the 
testator  as  the  polar  star  to  direct  them  in  the  construction  of 
xvilk:' 


Law  Miscfllanies.  153 

«  Upon  the  two  principles  of  inconvenience  and  hazard,  compar- 
»'  ed  together,  different  nations  have  at  different  times,  established 
"  different  rates  of  interest."     II  Black.  Com.  462. 

BY  the  statute  of  the  12th  Anne,  c.  16.  (1713)  entitled 
"  an  act  to  reduce  the  rate  of  interest^"*  wtiich  remains  the  Eng- 
lish law,  no  lender  upon  any  contract^  shall  take  directly  or 
indirectly  for  loan  of  any  monies,  wares,  merchandise,  or 
other  commodities  whatsoever,  above  the  value  of  5  pounds 
for  the  forbearance  of  100  pounds  for  a  year  and  so  after  that 
rate  for  a  greater  or  a  lesser  sum,  or  for  a  longer  or  shorter 
time ;  and  that  all  bonds,  contracts,  and  assurances  whatso- 
ever for  payment  of  any  principal,  or  money  to  be  lent  or  co- 
venant to  be  performed  upon  or  for  any  usury,  whereupon 
or  whereby  there  shall  be  reserved  or  taken  above  the  rate 
of  5  pounds  in  the  hundred  shall  be  utterly  void ;  and  that 
all  and  every  person  or  persons  whatsover  which  shall,  upon 
any  contract  to  be  made,  take,  accept  and  receive,  by  way  or 
means  of  any  corrupt  bargain,  loan,  exchange,  chevlzance, 
shift  or  interest  of  any  wares,  merchandise,  or  other  thing  or 
things  whatsoever,  or  by  any  deceitful  way  or  means,  or  by 
any  covin,  engine,  or  deceitful  conveyance,  for  the  forbear- 
ing or  giving  day  of  payment  for  one  whole  year  of  and  for 
their  money  or  other  thing,  above  the  sum  of  5  pounds  for 
the  forbearing  of  100  pounds  for  a  year,  and  so  after  that  rate 
for  a  greater  or  lesser  sum,  or  for  a  longer  or  shorter  term, 
shall  forfeit  and  lose  for  every  such  offence  the  treble  value  of 
the  monies,  wares,  merchandises  and  other  things  so  lent, 
bargained,  exchanged  or  shifted." 

The  student  when  he  reads  the  decisions  of  the  English 
courts  upon  this  statute,  will  be  naturally  led  to  enquire  whe- 
ther this  statute  has  been  introduced,  or  made  the  law  here. 
It  has  not  been  introduced,  or  acted  upon ;  for  we  have  an 
act  of  assemljly  of  our  own  of  the  11th  March,  1723,  which  is 
different,  and  varies  in  some  particulars  from  the  English  sta- 
tute. Willi  a  view  therefore  to  be  enabled  to  compare  our 
act  wi.h  the  British  statute,  I  will  extract  what  is  material 
of  it,  as  has  been  done  above,  totidcm  verbis  in  the  Stat,  of 
Anne  ;  that,  "  no    person   shall,  directly   nor  indirectly^    for 

IT 


154  Law  JVIlSCELLAKlESi 

any  bonds  or  contracts,  take  for  the  loan  or  use  of  none)'  or 
any  other  commodities,  above  the  value  of  6  pounds  for  the 
forbearance  of  100  pounds,  or  the  value  thereof,  for  one  year, 
and  so  proportionably  for  a  greater  or  lesser  sum  ;  and  that 
if  any  person,  &c.  shall  receive  or  take  more,  &c.  on  any  such 
bond  or  contract  upon  conviction  thereof  the  person  or  per- 
sons so  offending  shall  forfeit  the  money  and  other  things  lent, 
th':-  one  half  to  the  governor,  the  other  half  to  the  person  who 
shall  sue  for  the  same." 

A  difference  in  one  particular  will  be  observed  here  that 
the  bond  or  contract  is  not  declared  void  as  by  the  English 
statute  ;  so  that  though  an  interest  of  more  than  6  per  cent, 
could  not  be  recovered,  yet  the  sum  originally  lent  might  be 
recovered  on  the  bond. 

But  by  Sect.  2.  the  taking  more  than  6  per  cent,  is  render- 
ed highly  penal.  But  it  is  not  an  indictable  offence,  though 
the  word  conviction  is  used  ;  for  the  kind  of  conviction  is 
stated  in  the  act  upon  which  the  forfeiture  shall  be  recovera- 
ble, and  that  is  b)'  action  of  debt,  &c.  It  is  called  a  qui  tarn 
action  from  the  words  of  the  writ,  qui  tam  pro  republica  quam 
pro  se  ipso  sequitur.  These  words  of  the  writ  as  in  other 
cases,  are  recited  in  the  declaration. 

The  Jews  were  prohibited  from  taking  interest  from  each 
other ;  "  Thou  shalt  not  lend  upon  usury  to  thy  brother  ;  usu- 
ry of  money,  usury  of  victuals,  usury  of  any  thing  that  is 
lent  upon  usury.  Unto  a  stranger  thou  mayest  lend  upon 
usur)' ;  but  unto  thy  brother  thou  shalt  hot  lend  upon  usury." 
Deut.  xxiii.   19,  20. 

I  can  find  but  little  concerning  usury  among  the  Greeks. 
It  does  not  appear  that  any  legal  standard  was  established. 
Money  lenders  were  enjoined  to  be  moderate  in  their  pro- 
fits ;  which  Avere  in  general  previously  stipulated  by  the  par- 
ties. 

Among  the  Romans,  the  interest  of  money  was  called 
Foenus,  Usura,  fructus,  merces,  and  impendiuni.  It  would 
seem  to  have  been  discouraged  by  the  Decemvirs  :  "  Primo 
12  tabulis  sancitum  est  nequis  unciario  foenore  amplius  ex- 
ercerct."     Tac.  An.  Lib.  VI~16. 


Law  Miscellanies.  155 

The  rate  of  interest,  which  was  an  inveterate  grievance 
of  the  city  (vetcrem  durani  and  gravissimam  molem)  increas- 
ed and  fell  as  the  influence  of  the  wealthy,  orclaraours  of  the 
populace  were  most  predominant.  At  one  time  (A.  U.  408) 
6  per  cent,  (foenus  semiunciarum)  was  usual.  Towards  the 
end  of  the  Republic,  and  under  the  first  Emperors,  12  per 
cent  (usura  centesima)  was  tolerated.  After  the  death  of  An- 
thony and  Cleopatra,  it  fell  to  4  per  cent.  Dio.  Lib.  21.  Fi- 
nally Justinian  took  up  the  subject  and  regulated  it.  Persons 
of  illustrious  rank  were  confined  in  all  cases  to  the  moderate 
profit  of  4  per  cent.  Manufacturers,  and  persons  in  other 
employments  were  allowed  8  per  cent.  In  contracts  of  insu- 
rance (trajectitiis  contractibus)  twelve  was  permitted  :  and 
six  (dimidiam  centesimee)  was  made  the  ordinary  and  legal 
profit  to  all  other  descriptions  of  persons,  and  in  all  other 
contracts.     Code  4.  32, 26. 

It  is  on  this  principle,  the  prohibition  of  our  statute,  that 
the  licence  of  the  state,  by  a  charter  of  incorporation  be- 
comes necessary,  in  order  to  take  the  case  out  of  the  statute, 
in  case  of  discounts  upon  money  lent  by  banks.  What  is 
called  a  bonus  is  usually  given  by  the  company  for  such  a  pri- 
vilege. There  is  an  inconsistency  between  this  law,  and  the 
taking  more  than  6  per  cent,  upon  bank  stock.  It  would 
seem  that  this  statute  ought  to  be  repealed  or  enforced  against 
the  money  lenders  of  a  self-constituted  company. 

The  opinions  of  abstract  writers  on  the  subject  of  usury  are 
different.  Those  who  are  enemies  to  interest  in  general,  hold 
any  encrease  of  money  to  be  indefensibly  usurious.  Princi- 
pally resting  on  the  prohibition  of  it  to  the  Jews  by  Moses,  the 
school  divines  have  exclaimed  against  the  practice;  and 
the  canon  law  has  absolutely  forbidden  it  as  a  heinous  sin. 
But  the  precept  of  Moses  is  clearly  a  political  and  not  a  mo- 
ral injunction.  His  permission  of  it  to  strangers,  proves  that 
he  did  not  think  it  malum  in  se» 

Grotius  seems  to  condemn  it  in  a  moral  point  of  view, 
although  he  grants  (Dc  Jur.  Bell,  and  pac.  1.  11.  c.  22)  that 
a  compensation  allowed  by  law  not  exceeding  the  proportioa 


156  Law  Miscellanies. 

of  the  hazard  run,  nor  the  want  felt,  by  the  loan,  is  repug- 
nant neither  to  the  revealed  nor  natural  law. 

The  common  arguments  against  interest  are  considered 
by  Rutherforth,  in  his  Institutes  ;  book  II.  c.  27. 

The  distinction  of  the  security  being  void  by  the  English 
statute,  and  not  by  our  act,  See  1  Smith's  laws,  157.  refer- 
ring to  2  Dall.  92. 


NOTES  ONf 


BLACKSTONE'S  COMMENTARIES. 


POINTING  OUT  VARIATIONS  IN  THE  LAW  OF  PENNSYLVANIA, 
FROM  THE  COMMON  AND  STATUTE  LAW  OF  ENGLAND, 
WITH    OTHER    MATTERS    OF    A    GENERAL    NATURE. 


Ill  Black.  Com.  5. 

On  the  law  of  nuisances  as  respects  cities^  tozvns^  or  villages. 

Premising  that  I  have  no  particular  case  in  view,  I  will 
venture  to  lay  down  some  principles  of  law  on  this  head,  and 
to  refer  to  some  authorities  in  support  of  them.  For,  when 
a  people  come  to  be  informed  of  their  rights  and  duties,  by 
knowing  what  the  law  is  in  the  relations  of  society,  and  the 
use  of  property,  it  will  go  a  great  way  with  reasonable  men, 
to  induce  them  to  reform  abuses  and  to  correct  what  is  wrong: 
For  the  purpose  therefore  of  giving  a  clearer  view  of  the  sub- 
ject, I  shall  state  what  I  have  to  say  under  the  following 
heads. 

1 .  A  matter  may  be  a  nuisance  in  a  citt/y  town,  or  village^ 
that  would  not  be  a  nuisance  elsewhere. 

When  a  town  is  laid  out,  it  is  in  small  portions  of  ground, 
with  a  view  to  a  contiguity  of  building.  Whatever  goes  to 
prevent  this,  or  to  hinder,  goes  to  delay  or  defeat  the  becom- 
ing  a  town.  Hence,  it  follows  that  no  man  has  a  right  to 
use  the  parcel  of  ground  that  he  purchases,  so  as  to  deprive 
his  neighbour  of  the  enjoyment  of  that  which  he  has  also 
purchased  ;  and,  on  which  he  may  meditate  to  improve  ;  or 
mean  to  reside.     It  is  inconsistent  with  the  original  purpose 


158  Law  Miscfllanies. 

of  the  grant.     Whatever  therefore  shall  discourage  the  im- 
provement of  the  town  by  building  ;    or  render  residence  in 
it  uncomfortahk^  must  be  a  nuisance.     A  legal  definition  of  a 
nuisance  therefore  is,  "  that  xvhich  renders  the  enjoyment  cf 
life  and  property^  uncomfortable,''''     3  Bur.  337. 

It  follows  that  what  gives  a  reasonable  cause  of  apprehen- 
sion froynjire^  must  be  a  nuisance.  Who  would  think  him- 
self safe  with  a  magazine  of  gunpowder  on  an  adjoining  lot; 
or  even  a  small  quantity  uncovered  and  exposed  to  acciden- 
tal sparks  from  the  chimney  tops  of  houses,  or  to  other  causes 
of  inflammation.  Are  combustibles  of  hay^  straWy  or  ma- 
terials easily  inflammable^  not  also  dangerous?  It  never  was 
in  the  contemplation  of  purchasers  in  a  town  that  the  har- 
vests of  the  grounds  adjoining  should  be  brought  in,  and 
stowed  away  upon  the  in-lots  ;  and  exposed  xvithout  cover  as 
in  a  country  situation.     It  is  on  this  principle  that 

2.  What  would  not  be  a  nuisance  at  one  degree  of  improve- 
ment  in  a  tovjn^  xvill  be  a  nuisance  at  another. 

Rome  not  being  built  in  a  day,  as  the  proverb  is,  so  the 
lots  of  a  town  will  not  come  all  at  once  to  be  built  upon. 
And  while  the  buildings  are  sparse,  and  distant  from  each 
other,  they  partake,  in  proportion,  of  the  country.  But  as 
the  building  progresses,  the  reason  ceases,  and  the  indulgence 
with  it.  A  man  on  his  own  farm  may  erect  his  own  hog- 
sty.  But  in  a  town  he  cannot  keep  hogs,  or  erect  even  a 
dove  cote,  or  pigeon  house,  so  near  my  dwelling  as  to  offend 
hy  the  smell.  Either  of  these  is  a  nuisance,  Rol.  141.  9 
Coke,  57.  16  Vin.  25.  It  is  on  this  principle  of  contiguity 
of  building  that 

3.  What  may  be  a  nuisance  in  one  part  of  the  town,  will 
.not  in  another. 

"  A  soap  boiler  in  Wood  street,  a  Callender  man  in 
Bread  street ;  a  brew  house  on  Ludgate  hill,  is  a  nuisance ; 
for  such  trades  ought  not  to  be  in  the  principal  parts  of  the 
city,  but  in  the  outskirts.''^     2  Show.  327. 

A  lime  kiln  so  near  my  house  that  the  smoke  offends,  is 
H  nuisance.     9  Coke,  59. 


Law  Miscellanies."  159 

A  butcher  must  conjine  his  shambles  to  a  convenient  place. 
Com.  Dig. 

"  It  vould  be  endless  to  enumerate  all  the  instances  of 
nuisance.  The  principles  on  which  the  law  proceeds,  is  to 
use  your  property  so  as  not  to  injure  that  of  another."  3 
Selwyn,  974. 

But  I  go  on  to  state  another  principle  of  which  all  are  not 
aware,  viz. 

4.  That  what  may  be  indulged  in  the  handy  or  ufider  the 
managemeiit  of  one  person^  zvill  be  a  nuisance  in  the  hand  of 
another.  It  is  on  this  principle  that  a  crazy  man  will  not  be 
suffered  to  run  abroad,  or  retain  possession  of  weapons,  even 
though  he  hr^s  stabbed  no  one ;  because,  the  presumption 
from  his  insanity  is  that  he  will  stab,  and  a  reasonable  fear 
or  ground  of  apprehension,  will  justify  the  arresting  and 
confining  him  ^s^d public  nuisance.  So  of  a  careless  man,  or 
a  man  with  careless  servants  in  the  use  of  such  things  from 
which  danger  may  arise.  » 

This  leads  me  to  speak  of  remedies  in  the  case  of  nui- 
sance.    And, 

1.  A  man  may  be  called  upon  to  find  pledges  of  the  peace, 
or  give  security  for  his  good  behaviour^  "whose  management 
even  in  the  use  of  his  own  property ^  becomes  dangerous  to  his 
neighbours.  Preventive  justice  is  the  best  principle  of  the 
law.     Pnestat  cautela  quam  medela. 

2.  The  person  who  is  injured  by  having  his  situation  ren- 
dered uncom  friable  by  reason  of  a  nuisance^  may  enter  upon 
the  soil  of  another,  and  abate  the  nuisance;  that  is,  may  re- 
move it. 

"  A  person  injured  by  a  nuisance,  may  enter  and  abate 
the  nuisance,  though  on  the  part  not  his  own  ground.  2  Inst. 
405. 

"  A  nuisance  may  be  abated,  or  removed,  by  those  per- 
sons who  are  prejudiced  by  it.  ■  But  every  man  may  abate  a 
Common  nuisance."     16  Vin.  40. 

"  Any  one  may  break  it  down."     16  Vin.  46.      But, 

3.  "  Justices  of  the  peace  have  a  power  of  nuisance,  by 
virtue  of  the  statute,  1  Ed.  3.  c.  16.  bv  which  thev  are  creat- 


160  Law  Miscellanies. 

ed  to  enquire  of  all  public  nuisances."     Per.  Holt,  Chief 
Justice,  Mod.  255. 

The  great  remedy  is  therefore  by  abatement, 

A  redress  is  by  action  in  the  case  of  a  private  nuisance* 
But  I  speak  of  those  which  concern  the  whole,  which  is  a 
public  nuisance,  and  for  which  an  action  does  not  ly ;  because 
the  whole  are  concerned.  "  Of  a  common  nuisance,  none 
shall  have  action  but  shall  present  it."     16  Vin.  46. 

For  individual  hurt  done  by  a  public  nuisance,  an  indivi- 
dual may  have  action,  as  from  an  obstruction  in  a  high- way, 
or  street,  against  him  who  has  placed  the  obstruction  in  the 
way,  or  negligently  left  it  there,  whereby  a  particular  injury 
is  sustained. 

By  the  common  law,  "  if  a  servant  keep  his  master's  fire 
negligently,  so  that  his  neighbour's  house  is  burned  down, 
an  action  lies,  1  Black.  431.  And  if  an  action  lies  on  the 
consummation  of  the  injury,  why  may  not  I  have  security  of 
the  peace  on  giving  proof  of  the  negligence  which  may  lead 
to  it  ? 

I  am  led  to  this  remark,  from  careless  persons  going  into 
stables  with  candles  in  their  hands^  at  late  or  early  hours  ;  or 
with  segars  smoking.  This  is  a  just  cause  of  apprehension 
of  danger. 

But  remedies  by  action  or  indictment,  out  of  the  ques- 
tion, one  great  object  of  the  incorporation  of  a  city,  town,  or 
village,  is  a  more  summary  inquiry  into  nuisances  and  remo- 
val of  them.  It  can  by  this  means,  be  ascertained  with  more 
discretion  what  might  be  tolerated  for  a  time  or  in  any  place. 
Relative  situations  can  be  taken  into  view.  A  stack  yard ; 
buildings  not  closely  joining  ;  rubbish  from  a  building  car- 
rying up,  not  wholly  obstructing  the  street ;  where  and  how 
a  butcher's  shambles  may  not  render  imcomfortable,  &c.  &c. 
?<c. 


Law  Miscellanies.  1^1 

"The  next  and  principal  object  of  our  enquiries  is  the  redress 
♦'  of  injuries  by  suit  in  courts"  8cc.  Ill  Bl.  Com.  22. 

By  the  constitution  of  Pennsylvania,  art.  v.  "  the  judicial 
power  shall  be  vested  in  a  supreme  court,  in  courts  of  oyer 
and  terminer,  and  general  gaol  delivery,  in  a  court  of  com- 
mon pleas,  orplians  court,  registers  court,  and  a  court  of  quar- 
ter sessions  of  the  peace,  for  each  county,  in  justices  of  the 
peace,  and  in  such  other  courts  as  the  legislature  may  from 
time  to  time,  establish." 

A  justice  of  the  peace,  as  the  term  imports,  Is  a  conser^ 
vator  of  the  peace.  He  has  jurisdiction  over  all  offences 
against  the  public  peace  in  the  first  instance,  and,  on  com- 
plaint made  on  oath,  or  on  his  own  view,  he  may  issue  his 
warrant  to  a  constable  who  is  his  proper  officer,  and  commit 
to  gaol,  or  bind  over  to  the  court  of  quarter  sessions  of  the 
county  ;  to  which  it  will  behove  him  to  certify  the  recogniz- 
ance taken  of  the  offender  if  bailed,  and  of  the  prosecutor, 
if  there  is  one,  and  the  witnesses  that  may  substantiate  the 
charge  in  order  that  the  court  may  proceed  thereiuy;  which 
they  will  do,  if  they  consider  It  an  indictable  offence,  by  di- 
recting the  prothonotary  to  handover  to  the  attorney  for  the 
commonwealth  that  he  may  frame  bills  to  go  to  the  grand  ju- 
ry. The  prosecutor,  or  witnesses  bound  over  to  attend  are 
then  sv\^orn  in  court,  and  sent  up  with  the  bill. 

The  powers  and  duties  of  a  justice  of  the  peace  are  to  be 
collected  from  precedents  at  common  lavr,  treatises,  and  sta- 
tutes on  the  subject. 

But  to  the  jurisdiction  of  a  justice  of  the  peace  there  has 
been  superadded,  from  the  earliest  settlement  of  this  state, 
certain  powers  and  duties  in  civil  cases  or  controversies,  be- 
tween individuals  of  the  community.  This  jurisdiction  hav- 
ing been  found  convenient  has  been  extended  from  time  to 
time,  both  as  to  the  quantum  of  the  demand,  and  as  to  the 
nature  of  the  demand  of  redress.  In  the  first  instance  it  was 
confined  to  a  debt  or  demand  under  40s;  extended  subsequent- 
ly to  a  debt  not  exceeding  ^5,  with  an  appeal  to  the  court  of 
cr.mmon  pleas  of  the  county  ;  but  not  to  extend,  "  to  actions 
tif  deb^  for  rent,  debt  upon  bonds   for  performance  of  cove- 


162  Law  Miscellanies. 

nants,  actions  of  covenant,  replevin,  or  upon  any  real  Contract^ 
to  action  of  trespass  on  the  case,  for  trover  and  conversion, 
or  slander,  or  to  actions  of  trespass  for  assault  and  battery, 
or  imprisonment,  or  to  such  actions  where  the  title  to  land, 
shall,  in  any  way,  come  in  question."  This  jurisdiction 
afterwards  was  extended  to  debts  and  demands  not  exceed- 
ing ;^10  with  the  like  appeal. 

Thus  stood  the  law  until  the  adoption  of  the  present 
constitution,  when,  by  an  act  passed  19  April,  1794,  the  juris- 
diction was  extended  to  debts  and  other  demands  not  exceed- 
ing ;r20  under  every  regulation,  restriction   and  exception 
of  the  act  of  the  1st  March  1745 — 4th  April  1798,  a  farther 
advance  was  made  in  the  nature  of  the  demands  cognizable 
before  the  justice,   extending  to  all  cases  of  rents  not  ex- 
ceeding _;^20 ;  and  by  act  of  assembly  1st  March  1799,  far- 
ther extended  to  actions  for  recovery  of  damages  for  any 
tr<^pass  wrong  or  injury  against  the  real  or  personal  estate  of 
the  defendant  in  cases  not  exceeding  20  dollars  ;  and  to  cases 
of  rent  not  exceeding  3o^  dollars,  with  the  right  of  removal 
and  repeal  although  the  cause  in  dispute  may  not  amount  to 
;^10.     But  on   the  defendant  making  oath  that  the  title  to 
lands  will  come  in    question,  the  suit  shall  be   dismissed. 
This  jurisdiction  not  to  extend  to  actions  of  ejectment  brought 
to  obtain  possession  of  lands  and  tenements,  actions  of  re- 
plevin in  cases  of  actual  distress^  actions  of  slander,  actions 
on  real  contracts  for  the  sale  and  conveyance  of  lands,  and 
tenements,  civil  actions  for  damages  in  personal  assault  and 
battery,  wounding,  or  maiming,  or  to  actions  for  false  impri- 
\Sonment.     17th   March,  1806,  justices  authorised  on  com- 
plaint for  assault  and  battery,  or  assault  only,  to  dismiss  on 
the  agreement  of  the  parties^  provided  the  said  justices,  or 
justice,  shall  be  fully  satisfied  that  the  settlement  of  such 
complaint  will  not  injure  the  safety  of  the  citizen,  or  the 
peace  of  society.     lOih  April,  1809,  extended  to  actions  of 
trover  and  conversion  to  the  amount  of  30  dollars,  provided 
it  shall  not  prevent  a  party  from  his  remedy  by  action  of  re- 
plrvin,  or  detinue  as  regulated  by  law.     20th  March,  1810, 
this  jurisdiction  is  enlarged  to  all  causes  of  action  arising 
from  contract  either  expressed  or  implied,  in  all  cases  where 


Law  Miscellanies.  163 

the  sum  demanded  is  not  above  100  dolls  :  except  in  cases  of 
real  contracts,  where  the  title  to  lands  or  tenements  may  come 
in  question,  or  actions  upon  promise  of  marriage  j  this  with 
regulations  as  to  referees^  and  restrictions  as  to  appeal,  or 
removal,  and  stay  of  execution. 

Thus  much  may  suffice  as  to  some  outline  of  the  civil 
jurisdiction  annexed  to  the  powers  and  duties  of  the  justice 
of  the  peace,  whose  judicial  authority  is  without  the  assist- 
ance of  a  jury,  but  with  that  of  referees  under  certain  regula- 
tions. 

It  was  not  without  opposition  in  the  legislature  that  the 
jurisdiction  of  the  justices  was  thus  increased.  A  branch 
of  it,  the  governor  refused  his  signature  ;  so  the  act  of  2d 
Jan.  1804-,  reviving  and  making  perpetual  the  act  of  Isti 
March  1799,  was  passed  by  two  thirds  of  each  of  the  other 
branches,  and  became  a  lav/.  Nor  out  of  doors  was  there  a 
perfect  acquiescence,  as  a  case  appears  to  have  been  brought 
before  the  supreme  court,  in  which  was  questioned  the  con- 
stitutionality of  such  increase.     1  Bin.  416. 

The  next  grade  of  courts,  in  the  ascending  scale,  is  that 
•f  the  court  of  quarter  sessions  in  each  county,  which,  as  at 
present  constituted,  consists  of  a  president,  and  two  asso- 
ciates ;  these  last  though  not  necessarily  legal  characters^ 
yet  are  of  great  use,  consilium  et  auxilium,  contributing 
the  advice  of  good  sense  and  moral  reason  and  giving  weight 
to  authority;  but  more  especially  they  are  serviceable  in 
taking  recognizances,  and  judging  of  the  quantum  of  bail; 
in  the  assessment  of  fines  ;  appointment  of  county  auditors  j 
and  of  viewers  and  reviewers  in  the  laying  out  and  locating 
•f  roads ;  and  granting  tavern  licences,  &c.  &c.  &c. 

The  president  though  not  a  sine  qua  non  in  holding  this 
court,  is  the  president  of  a  district,  consisting  not  of  fewer 
than  three^  and  not  of  more  than  six  counties.  This  presi- 
dent and  the  associates,  any  two  of  whom  shall  be  a  quorum, 
shall  constitute  the  respective  courts  of  common  pleas  in 
each  county ;  which  last  court  has  jurisdiction  of  civil  mat" 
ters  only;  but,  it  is  provided  by  the  constitution  that  the 
judges  of  the   common  pleas,  any  two  of  whom  shall  be  a 


•164  Law  Miscellanies. 

quorum,  shall  constitute  the  court  of  quarter  sesfiiojis  of  the 
peace^  the  orphans  court.  The  register  of  wills,  togriher 
with  the  said  judges,  shall  compose  the  register'' a  court  of 
each  county. 

The  judges  of  the  court  of  common  pleas  in  each  county, 
shall,  by  virtue  of  their  offices,  be  justices  of  oyer  and 
terminer,  and  general  gaol  delivery  for  the  trial  of  capi- 
tal and  other  offenders  therein  :  any  two  of  the  said  judges, 
the  president  being  one,  shall  be  a  quorum  ;  but  they  shall  not 
hold  a  court  of  oyer  and  terminer  and  general  gaol  delivery 
in  any  county  when  the  judges  of  the  supreme  court,  or  any 
of  them,  shall  be  sitting  in  the  same  county.  This  I  pre- 
sume must  mean  when  sitting-  as  a  court  of  oyer  and  terminer 
and  gaol  delivery  in  the  same  county. 

The  court  in  the  dernier  resort  is  the  supreme  court,  as 
the  term  imports.  From  this  court  writs  of  error  and  cer- 
tiorari are  directed  to  the  several  courts  of  inferior  jurisdic- 
tion, and  appeals  sustained  where  the  law  gives  an  appeal, 
for  the  review  of  matters  of  law  there  arising. 

In  the  city  of  Philadelphia  there  is  a  mayor's  court  subor- 
dinate to  that  of  the  court  of  quarter  sessions.  There  is 
also  a  district  court  of  common  pleas  of  a  co-ordinate  but 
not  5z//>eri(jr  jurisdiction  to  that  of  the  common  pleas  which 
remains  attached  to  the  court  of  quarter  sessions,  or  connect- 
ed with  it,  in  so  far  as  the  component  members  are  judges 
of  both  courts.  This  district  court  may  be  considered  su- 
perior, as  to  the  sum  in  demand ;  for  it  takes  cognizance  of 
higher  demands  ;  the  jurisdiction  of  the  common  pleas  at- 
tached to  the  sessions  being  limited  to  the  amount  of  the 
justice's  jurisdiction  ;  so  that  appeals  from  them,  or  certi- 
oraries  directed  to  them,  make  the  subject  of  the  jurisdiction  ; 
whereas  that  of  the  district  court  begins  here  and  is  without 
limit.  This  last  court  is  but  of  a  temporary  duration  of  six 
years,  by  the  act  constituting  it ;  but  such  is  its  evident  uti- 
lity, or,  rather  necessity,  that,  doubtless,  it  xvill  be  made  per- 
manent. 

The  supreme  court  still  continues  to  have  original  \ur\^- 
dictlon  in  the  city  of  Philadelphia,  in  matters  exceeding  500 


Law  MiscELLANiEi.  165 

dollars  ;  and  for  this  purpose,  courts  of  nisi  prius  are  holden ; 
but  it  is  expected,  that  at  no  distant  day,  these  will  be  taken 
away ;  and,  this  court,  as  it  ought,  will  then  exist  a  court 
of  errors  and  appeals  merelif.  This  is  all  that  is  wanted  to 
rend-:;r  the  system  perfect ;  so  far  as  respects  arrangement, 
and  the  distribution  of  powers  and  duties.  The  supreme 
court  has  an  immense  jurisdiction  independent  of  the  trial 
of  issues  in  fact.  It  has  "  to  examine  and  correct  all  and  all 
manner  of  errors  of  the  justices  and  magistrates  of  this  pro- 
vince (now  state)  in  their  judgments,  process  and  proceed- 
ings in  the  said  courts,  as  well  in  all  pleas  of  the  crown,  as 
in  all  pleas  riral,  personal,  and  mixed ;  thereupon  to  reverse 
or  affirm  the  said-judgments  as  the  law  doth  or  shall  direct: 
and  also  to  examine,  correct  and  punish  contempts,  omissions 
and  neglects,  favours,  corruptions  and  defaults,  of  all  or  any 
of  the  justices  of  the  peace,  sheriffs,  coroners,  clerks  and  other 
officers ;  and  also  shall  award  process  for  levying  fines,  for- 
feitures and  amerciaments,  that  shall  be  estreated  into  the 
said  court  J  and  generally  shall  administer  justice  to  all  per- 
sons, and  exercise  the  jurisdiction  and  powers  hereby  grant- 
ed concerning  all  and  singular  the  premises  according  to  law, 
as  fully  and  amply,  to  all  intents  and  purpose  whatsoever, 
as  the  justices  of  the  court  of  king\'i  bcnch^  common  pleas  and 
exchequer^  at  Westminster,  or  any  of  them  may  or  can  do. 

This  system  I  consider  good  in  the  outline,  but  it  wants 
some  filling  up,  to  do  the  system  justice.  For  as  to  the 
quantum  of  duty;  or  I  might  rather  saj',  drudgery  that  de- 
volves upon  such  of  the  district  presidents,  as  have  more 
than  three  counties  to  attend,  it  is  oppressive  ;  and,  the  sala- 
ry, in  proportion  to  such  labour,  totally  inadequate.  It  is 
the  more  so,  as  most  of  the  districts  comprehend  a  moun- 
tainous country,  in  the  interior  of  the  state.  This  ought  to 
receive  a  remedy.  For  the  system  has  not  a  fair  chance  of 
experiment  under  such  disadvantage. 

As  to  the  supreme  court,  two  judges  added,  in  due  time, 
will  be  advisable,  as  the  finances  of  the  state  increase,  and 
the  public  mind  becomes  more  enlarged  as  to  the  importance 


166  Law  Miscellanies. 

of  having  the  law  settled,  ivith  the  advantage  of  more  judg- 
ment ;  or  at  least  more  to  judge.  . 

I  object  to  ybi/r  judges  ;  even   three  2ire  better  than  an 
equal  number ; 
— Imparl  numero  gaudet  deus. 

In  the  city  of  Philadelphia,  it  has  been  suggested  that  a 
maritime  and  commercial  court,  so  called,  might  be  constitu- 
ted, taking  cognizance  of  all  transactions  of  that  nature, 
which  in  this  growing  and  trading  metropolis,  might  be  ne- 
cessary with  writs  of  error  to  the  supreme  court. 

Courts  of  arbitration,  as  they  may  be  called,  are  ancillary 
to  nil  the  courts ;  and  with  some  lopping  and  improvement, 
this  part  of  the  system  might  receive  approbation. 

We  have  no  chancery  court  in  Pennsylvania  :  nor  do  we 
feel  any  great  want  of  it;  for  equity  is  a  part  of  our  law; 
and  all  our  courts  exercise  equitable  jurisdiction^  with  the  ex- 
ception of  an  appeal  to  the  conscience  of  the  party,  and  the 
decree  of  a  specific  performance,  which  under  the  constitu- 
tion, might  be  given,  in  the  proper  cases  to  the  courts  of 
law. 

The  act  establishing  a  court  of  chancery  in  Pennsylvania, 
was  passed  the  28th  of  May,  1715,  and  repealed  by  the  lords 
justices  in  council  the  21st  July,  1719.  It  is  understood  to 
have  been  adjudged  that  the  proceedings  which  took  place 
under  the  said  act  before  its  repeal,  were  binding. 

By  an  act  22d  May,  1722,  Sec.  25,  special  courts  are 
grantable  to  defendants  in  the  common  pleas  ^hy  reason  of  sud- 
den departure  out  of  the  then  province,  now  state. 

By  an  act  of  10th  April,  1782,  the  privilege  of  having  a 
special  court  was  extended  to  plaintiff's  as  well  as  defen- 
dants J  and  to  cases  in  the  supreme  court  as  well  as  common 
pleas  ;  but  was  again  taken  from  the  plaintiffs  by  an  act  of 
the  27th  March,  1789. 

By  an  act  of  1 3th  April,  1 791 ,  a  court  of  errors  and  appeals 
had  been  constituted,  consisting  chiefly  of  the  presidents  of 
districts.  To  these  severally  writs  of  error  were  directed, 
in  the  first  instance,  from  the  supreme  court ;  and  in  the  last 
resort  from  these   conjunctively   to  the  supreme  court.     So 


Law  Miscellanies.  tsV 

that  each  could  have  his  revenge  for  a  reversal  of  his  several 
judgnients,  by  a  voice  in  the  consistory  of  the  -whole  in  the 
reversal  of  the  supreme  judgment.  In  this  constitution  of 
the  judiciary,  there  was  something  like  a  resemblance  of  Cot- 
tom  Mathew's  snake  in  his  report  to  the  philosophical  socie- 
ty, that  ran  with  its  /^fo/ foremost  one  while,  and  with  its  tail 
foremost  afterwards. 

By  an  act  24th  Feb.  1 806,  this  court  was  suspended  as  "  to 
sustaining  any  new  cause,"  and  after  holding  two  terms  for 
unfinished  business  t«  be  then  abolished  znd  the  poAxrs  and 
duties  to  be  vested  in  the  supreme  court. 

By  an  act  of  the  20th  March,  1801,  what  were  called 
circuit  courts,  were  substituted  in  lieu  of  courts  of  nisi  prius^ 
so  far  as  respected  the  counties  exclusive  of  the  city  and  coun- 
ty of  Philadelphia.  This  court  was  found  unwieldy  and  in- 
convenient, and  has  been  since  abolished;  and  without  a 
revival  of  the  nisi  prius  courts ;  for  which,  under  the  consti- 
tution of  the  courts  by  presidents  ©f  districts  there  would 
seem  now  to  be  no  necessity. 


"  The  high  court  of  chancery  is  the  only  remaining,  and,  m. 
"  matters  of  civil  property,  by  much  the  most  important  of  any, 
*»  of  the  king's  superior  and  original  courts  of  justice."  Ill  Bl. 
Com.  47. 

IT  will  naturally  occur  to  the  student,  to  enquire,  what 
have  we  to  do  with  chancery  lezv  in  Pennsylvania,  since  we 
have  no  court  of  chancery?  We  have  to  do  with  it;  and  the 
student  after  a  course  of  reading  general  lazv,  will  come  to 
read  treatises^  tracts,  or  reports  of  equity  law.  As  for  in- 
stance, Fonhlnnqiie^  or  the  treatise  on  equity,  referring  to 
Aikyn's,  Peere  William's  reports.  See.  For  equity  is  no- 
thing more  than  exceptions  from  general  rules.  Thus  we  say, 
such  is  the  general  rule  ;  but  this  case  does  not  come  v/ithin 
it.  There  are  circumstances  which  distinguish^  so  that  the 
general  rule  canaot  apply.     The  court  of  chancery  in  Eng- 


16S  .  Law  Miscellanies. 

land,  takes  a  peculiar  cognizance,  or  exercises  a  peculiar  ju- 
risdiction  over  these  exceptions^  and  therefore  the  law  with 
respect  to  these,  is  to  be  collected  from  the  chancery  reports. 
And  it  becomes  as  necessary  to  read  these  in  this  state  where 
we  have  no  chancery  court,  as  in  England,  or  in  other  states 
of  the  Uiiion,  where  they  have. 

It  is  asked  by  lawyers  from  other  states,  or  reflecting  in- 
dividuals, how  are  we  able  to  accomplish  the  ends  of  justice 
in  our  administration  of  the  law,  having  no  court  of  chancery 
in  Pennsylvania ?  Why  not?  Cannot  the  same  courts  which 
take  notice  of  the  general  rule  of  the  law,  take  notice  also  of 
the  exception  which  forms  an  equity^  or  takes  a  case  out  of 
the  general  rule  ?  We  have  an  advantage  over  administra- 
tion of  the  law  by  courts  of  chancery  in  England,  or  in  other 
states,  in  this  particular,  that  we  have  the  assistance  of  a  jury 
to  whom  the  Jcicts  may  be  referred  upon  which  constitutes 
the  exception,  and  upon  which  the  equity  arises.  This  is  a 
great  aid  to  the  courts,  and  more  satisfactory  to  the  people. 
It  cannot  but  be  some  abridgment  of  the  trial  by  jury^  that 
the  conclusion  of  fact  from  the  evidence  should  be  drawn  in 
jmy  case,  by  the  courts  and  not  by  the  jury. 

By  the  constitution  of  Pennsylvania,  art.  5,  sec.  6,  "  the 
supreme  court  and  the  several  courts  of  common  pleas,  be- 
side the  powers  heretofore  usually  exercised  by  them^  have  the 
power  of  a  court  of  chancery  so  far  as  relates  to  the  perpetu- 
ating testimony,  the  obtaining  of  evidence  from  places  not 
within  the  state,  and  the  care  of  the  persons,  and  estates  of 
those  who  are  not  compotes  mentis :  and  the  legislature 
shall  vest  in  the  said  courts,  such  other  powers  to  grant  re- 
lief in  equity  as  shall  be  found  necessary ;  and  may  from 
time  to  time,  enlarge,  or  diminish  those  powers,  or  vest  them 
in  such  other  courts  as  they  shall  judge  proper,  for  the  due 
administration  of  justice."  Our  courts  of  law  before  this 
constitution,  had  exercised  the  powers  of  a  court  of  chance- 
T}',  as  to  the  equity  province  of  it,  and  we  look  into  the 
grounds  of  decisions  there,  as  much  as  the  lawyers  in 
England  themselves  do;  and  as  to  the  farther  powers  giv- 
en by  this  constitution,  for  perpetuating  testimon) ,  he.  we 


Law  Miscellanies.  169 

look  into  the  precedents^  and  practice  of  chancery  as  guides, 
where  we  choose  to  make  use  of  the  wisdom  of  those  who 
have  gone  before  us.  There  is  no  book  therefore  of  chancery 
law,  which  may  not  be  useful  to  the  student ;  and  necessanj 
indeed,  in  most  cases  to  be  consulted,  and  read. 


Ill  Bl.  Com.  98. 

THERE  being  no  ecclesiastical  court,  or  equity  court  in 
Pennsylvania,  which  have  a  concurrent  jurisdiction  in  the 
case  of  legacies  ;  acts  of  assembly  became  necessary  on  this 
subject.  That  of  the  21st  March,  1772,  entitled  an  "  act  fof 
the  more  easy  recovery  of  legacies^  is  that  under  which  we 
proceed  against  executors,  or  administrators.  And  this  may 
be  by  action  on  the  case,  debt,  detinue,  or  account  rendered, 
as  the  case  may  be,  for  such  legacy  after  it  becomes  due  ;  and 
in  that  case  shall  recover  with  costs.  It  may  be  debt  where 
it  is  a  sum  certain,  and  assets  after  debts  paid,  exist,  suffici- 
ent to  discharge  ;  or  it  may  be  case  for  the  part  of  the  sum 
after  debts  paid ;  or  case,  and  not  debt,  for  the  whole,  as  for 
money  had  and  received  to  the  use,  giving  special  notice  of 
the  cause  of  action.  But  in  the  case  of  a  specific  chattel,  it 
must  be  detinue;  or  on  the  case  for  the  detention  of,  and  pray- 
ing damages,  not  for  the  detention  but  for  the  value. 

The  term  devise  is  appropriate  to  real  estate ;  legacy  to 
personal.  This  distinction  also,  in  the  use  of  the  terms, 
devisee^  and  legatee ;  devise^  and  bequest^  &c.  of  which 
let  the  student  take  notice  who  would  wish  to  be  cor- 
rect, as  all  ought  to  be,  in  the  use  of  terms.  As  for 
instance,  evidence  is  a  general  term  which  applies  to  xvrit- 
ten^  and  viva  voce  of  witnesses ;  but  testimony  is  applicable 
to  that  by  witnesses  ;  and  it  is  not  correct  to  say  an  evidence^ 
but  a  witness,  I  always  think  it  an  evidence  of  want  of 
precision^  and  a  distinguishing  mind,  where  a  lawyer  at 
the  bar,  does  not  attend  to  this ;  for  it  may  be  said,  in  this, 
aa  in  other  matters  of  lesser  moment, 

Y 


170  Law  Miscellanies/ 


Inest  sua  gratia  parvis. 


It  will  be  seen,  that  by  our  act,  Sec.  7.  where  no  time  is 
limited,  for  the  payment  of  a  legacy,  the  executor,  or  admi- 
nistrator shall  have  the  space  "of  one  year  to  discharge  the 
same." 

An  executor  is  considered  as  a  trustee  in  England  for 
creditors,  legatees,  &c.  and  under  this  idea  it  is  that  the  court 
of  equity  takes  jurisdiction.  How  far  he  is  a  trustee  for 
the  next  of  kin  as  to  the  residuum,  after  all  debts  and  legacies 
have  been  discharged,  see  the  chancery  decisions  on  this 
head.  The  claim  of  the  executor  in  this  case  has  been  much 
reduced,  and  would  seem  to  be  in  a  fair  way  to  come  to  noth- 
ing. But  it  is  astonishing  that  in  Pennsylvania,  where  by  act 
of  assembly  a  compensation  had  been  allowed  for  his  trouble, 
at  the  discretion  of  the  orphans  court,  yet  it  was  not  until 
May,  1811,  in  the  case  of  Wilson  v.  Wilson,  3  Binney,  557^ 
that  it  was  finally  settled  that  he  was  not  entitled  to  claim  for 
himself,  but  as  to  the  surplus  was  to  be  considered  a  trustee 
for  the  next  of  kin. 


"  Some  agreements  indeed,  though  never  so  expressly  made, 
"  are  deemed  of  so  important  a  nature,  that  they  ought  not  to  rest 
"  in  verbal  promise  only,  which  cannot  be  proved  but  by  the  me- 
"  mory  (which  sometimes  will  induce  the  perjury)  of  witnesses." 
IIIBl.  Com.  159. 

BY  the  act  of  29  Car.  2.  (1676,)  entitled  an  act  for  pre- 
vention of  frauds  and  perjuries,  "  all  leases,  interests  of  free- 
hold, or  terms  of  years,  or  any  uncertain  interest  of,  in,  to 
or  out  of  any  messuages,  manors,  lands,  tenements  or  here- 
ditaments, made  or  created  by  livery  and  seizen  only,  or 
by  parol,  and  7iot  put  in  xvriting^  and  signed  by  the  parties 
so  making  or  creating  the  same,  or  their  agents  thereunto 
lawfully  authorised  by  writing,  shall  have  the  force  and  ef- 
fect of  leases  or  estates  at  will  only,  and  shall  not  either  in  law 


Law  Miscellanies.  171 

©r  equity  be   deemed  or  taken  to  have  any  other  or  greater 
force  or  effect,"  &c. 

Sec.  2.  "  Except  nevertheless  all  leases  not  exceeding  the 
term  of  three  years  from  the  making  thereof,  whereupon 
the  rent  reserved  to  the  landlord,  during  such  term,  shall 
amount  unto  two  third  parts  at  the  least  of  the  full  improved 
value  of  the  thing  demised." 

The  act  goes  on,  sec  4.  that  no  action  shall  be  brought 
whereby  to  charge  any  executor  or  administrator,  &c. 

Our  act  with  the  same  title  and  precisely  in  the  same 
words  of  the  first  and  second  sections  which  relatt-s  to  real 
estate  proceeds  no  farther.  It  would  seem  to  be  copied  so 
far  as  it  goes  from  the  British  statute,  made  near  a  hundred 
years  before.  Real  estate  would  seem  to  have  been  left  in  the 
meantime,  in  matters  of  transfer,  to  the  testimony  of  wit- 
nesses ;  and  having  had  no  court  of  chancery,  except  for  a 
short  space  during  this  period,  persons  contracti-ng  as  pur- 
chasers of  real  estate,  must  have  been  left  to  recover  in  an 
ejectment  for  the  possession,  or  by  action  on  the  case  to  reco- 
ver damages  for  the  non  performance  of  the  agreement. 
Even  without  writing,  an  action  of  damages  would  lie  m 
England  now,  or  in  Pennsylvania  before  our  act  passed  ; 
and  in  England  a  court  of  chancery  would  decree  a  specific 
execution  of  the  contract  where  there  was  evidence  of  part 
execution,  such  as  posession  given,  or  money  paid.  It  is  a 
query  whether  the  receipt  for  the  money  must  not  be  in 
writing.  But  at  all  events  the  terms  of  the  contract  must  be 
precisely  proved.  It  is  the  same  law  with  us  on  an  eject- 
ment brought,  which,  in  default  of  a  chancery  court,  is  our 
only  remedy  for  obtaining  the  possession.  We  had  a  law 
before  this  relative  to  a  seven  years'  possession  entered  upoa 
under  an  equitable  title,  which  is  still  in  force,  and  is  a  sta- 
tute of  limitation  to  the  claim  of  him  in  whom  the  legal  ti- 
tle remains  after  an  agreement  made  to  convey,  and  delivery 
•f  possession. 


IT'S  Law  Miscellanies. 

"  Entered  on  upon  an  equitable  righty'*  are  the  words  of 
the  Pennsylvania  act  of  assembly  of  1705,  entitled  "  the  law 
about  seven  years'  quiet  possession."  It  will  be  a  question 
with  the  student,  what  is  to  be  understood  by  an  equitable 
right.  It  is  a  right  short  of  what  is  called  a  /^^a/ right,  or  a 
right  under  the  general  rule  which  gives  a  right  to  lands. 
This  must  be  by  a  writing  under  seal.  A  v/riting  not  under 
seal;  or  an  agreement  without  writing  will  constitute  an 
equitable  right ;  but  not  an  agreeme7it  merely^  proved  by 
witnesseSyWiW  suffice.  Some  performance  of  the  agreement 
must  be  proved.  Will  proof  of  the  payment  of  the  consider- 
ation, or  z  principal  part  of  it,  be  sufficient  ?  This  is  a  ques- 
tion in  England,  to  which  a  query  is  added.  But  the  inclina- 
tion of  the  law  seems  to  be,  that  it  will ;  because,  in  such 
case,  the  parol  evidence  is  applied  to  the  act  of  receivings 
which  is  a  consequence  of  and  collateral  to  the  act  of  con- 
tracting, and  consequently  affords  a  further  evidence  of  the 
bargain,  than  the  parol  proof  of  such  bargain  only  ;  namely, 
an  act  done  in  pursuance  of  it,  which  furnishes  a  distinct  fact, 
that  appears  to  be  the  proper  subject  of  discussion  before  a 
jurj%  who,  in  such  case,  would  be  competent  judges  of  the 
credit  of  the  parties,  and  might,  by  their  verdict,  decide, 
whether  the  payment  of  money  was  in  part  performance  or 
not.   1  Pow.  Con.  306.  r— S,  and  4  Dall.  152. 

The  giving  possession  in  pursuance  of  an  agreement,  is 
clear  evidence  of  a  part  performance,  and  may  be  proved  by 
witnesses.  The  being  suffered  to  remain  in  possession,  and 
the  making  improvements  with  the  knowledge  of  the  person 
agreeing  to  convey,  is  still  stronger  evidence  of  the  contract, 
and  will  give  an  equitable  right.  I  do  not  well  know  therefore 
what  is  the  use  of  this  act  of  assembly.  It  would  seem  that 
at  the  time  there  had  been  a  doubt  whether  evidence  of  the 
giving  possession,  not  having  a  court  of  chancery  in  this 
state,  could  be  admitted  ;  or  if  evidence  of  the  giving  pos- 
session could  not  be  had,  the  suffering  to  remain  in  possession, 
for  a  length  of  time  should  be  proof  of  an  agreement  to  con- 
vey. This  length  of  time  was  made  seven  years  as  a  statute 
of  limitation  within  which  time  an  ejectment  must  be  brought. 


Law  Miscellanies.  ITS 

In  a  court  of  chancery  the  party  agreeing  to  convey  may 
be  called  upon  to  say  on  oath  whether  he  did  not  so  agree. 
In  thit  case  if  he  acknowledges  the  agreement,  there  is  an 
end  of  the  matter. 

Where  possession  is  not  given  the  party  claiming  such  a 
contract  to  convey  in  this  state  where  we  have  no  court  of 
chancery  to  decree  the  performance,  and  the  giving  a  con- 
veyance, can  have  only  the  remedy  of  an  action  to  recover 
damages  ;  but  in  such  case,  the  jury  will,  and  ought  to  give 
such  damages  as  will  compel  the  party  to  convey,  by  mak- 
ing it  his  interest  rather  than  to  retain  the  land.  Note  ;  that 
it  is  to  be  understood  that  in  all  these  cases  of  an  agree- 
ment to  convey  land,  the  terms  of  the  contract  must  be  pro- 
ved ;  the  consideration  ;  the  quantity,  &c.  In  all  these  cases 
there  must  be  a  reasonable  certainty ;  perhaps  a  precise 
certainty  established;  for,  the  party  claiming  the  benefit  of 
such  contract,  without  writing,  ought  to  be  held  to  strict 
proof  of  these  particulars. 

By  the  common  law  a  parol  contract  was  as  good  for 
lands  as  for  chattels.  It  is  the  statute  of  29th  Charles  II. 
which  was  made  to  prevent  persons  from  swearing  verbal 
agreements  upon  others,  that  has  introduced  a  distinction 
and  the  exceptions  to  this  statute  are,  what  is  said  to  consti- 
tute an  equity ;  that  is  to  admit  evidence  by  parol. 


Ill  Bl.  Com.  199. 

WHAT  was  it  that  introduced  the  necessity  of  the  fiction 
in  ejectment  ?  It  is  here  distinctly  stated  to  be,  the  defect  of 
a  remedy  on  behalf  of  a  tenant  for  years^  enabling  him  to  re- 
cover the  possession  against  the  lessor,  or  a  stranger,  who  had 
put  him  out;  in  which  case  he  was  obliged  to  desert  the 
courts  of  law,  and  go  into  chancery  to  obtain  redress  ;  for 
at  law  he  could  only  recover  damages,  but  not  the  possession. 
The  courts  of  law,  in  order  to  give  redress  without  render- 


174  Law  Miscellanils. 

ing  it  necessary  to  go  into  a  court  of  chancery,  conlrivid  the 
feigning  the  lessee  for  years  to  be  a  lessor  himself,  and  to 
pursue  for  a  wrong  to  his  tenant.  And  in  order  to  avoid  the  sta- 
tute of  maintenance,  it  is  a  part  of  the  fiction  that  he  had  en- 
tered ^nd  ruas  in  possession.  It  was  a  principle  of  law  also 
that  the  grantee  of  the  reversion  "  might  at  anytime  by  a  com- 
mon recovery, have  destroyed  the  term  of  the  lessee  for  years." 

But  what  was  there  to  hinder  the  parliament  to  have 
made  provision  as  to  all  these  particulars  ?  There  was  noth- 
ing that  I  know  of  but,  that  the  feudal  lords  might  object  to 
this.  It  was  probably  an  apprehension  that  such  a  bill  could  not 
be  carried  in  the  house  of  lords,  that  it  was  not  brought  for- 
ward in  the  legislature.  It  was  doubtless  of  necessity  that  the 
courts  devised  this  fiction  ;  for  a  fiction  was  never  introduced, 
but  where  the  application  of  the  general  principle,  will  work 
an  inconvenience.  Hence  the  maxim,  in  fictione  juris  semper 
subsistit  equitas.  This  last  reason  had  ceased  under  our  co- 
lonization. What  could  hinder  then  our  own  legislature  to 
provide  for  all  that  was  gained  by  this  fiction  of  proceeding  ? 
This  fiction  carried  with  it  the  advantage,  that  there  might  be 
atrialtoties  quoties  hy  feigiiing  a  neru  lessor  and  a  new  les- 
see; so  that  a  recovery  in  one  case  could  not  be  pleaded  in 
bar  to  another.  For  it  was  a  principle  "  that  when  a  man's 
possession  is  once  established  in  a  possessory  action,  it  can 
never  be  disturbed  by  thg  same  antagonist."  But  itwusfowid 
to  work  an  inconvenience  to  suflfer  the  possession  to  be  dis- 
turbed toties  quoties  ;  and  therefore  application  became  ne- 
cessary to  a  court  of  chancery,  to  set  some  limit  to  the  fic- 
tion ;  and  after  two  verdicts  in  favour  of  the  same  title,  an 
injunction  was  decreed. 

But  the  management  of  this  fiction,  even  as  moulded  and 
fashioned  by  the  courts  for  the  purposes  of  justice,  and  how- 
ever well  understood  by  the  profession,  carried  with  it  some 
inconvenience  in  the  practice.  Where  the  term  laid  in  the 
declaration  had  expired,  from  the  continuance  of  the  cause  in 
court,  tlic  courts  would  give  leave  to  enlarge  the  term.  But 
where  the  time  of  tlie  demise,  or  leasing  alleged,  had  been 
laid  too  far  bad;,  so  that  evidence  of  title  anterior  to  the  de- 


Law  Miscellanies.  175 

mise  laid,  could  not  come  in,  they  Avould  not  give  leave  to 
contract  it  to  a  later  date.  The  courts  had  begun  to  give 
this  leave  in  England,  to  avoid  a  fine,  &c.  But  it  had  been  re- 
fused here,  and  a  nonsuit  the  consequence ;  even  to  avoid 
the  statute  of  limitations,  it  had  been  refused.  A  confes- 
sion of  lease  entry  and  ouster,  where  it  had  been  omitted  to  be 
called  for,  and  not  entered,  the  courts  thought  themselves  not 
justifiable  in  directing  the  filling  up  this  part  of  the  fiction, 
and  a  nonsuit  must  take  place. 

But  the  fiction  of  lease  entry  and  ouster  was  unintelligi- 
ble, to  the  country  ;  and  the  form  of  the  declaration,  alleging 
the  entry  to  be  with  "  swords,  staves,  and  knives,"  where 
none  were  used,    appeared  an  absurdity.     It  is  of  moment 
in  a  republican  government,  where  the  people  will  not  be  sa- 
tisfied with  what  they  do  not  comprehend,  that  not  only  the 
substance  of  the  law  shall  be  understood ;  but  also  that  the 
forms  of  legal   proceedings,  should  be  brought   as  much  as 
possible  on  a  level  with  common  apprehension.     But  it   is  a 
difficult   matter  for  men  who  are  not   acquainted  with    the 
principles  of  a  science,  and  cannot  discern  the  cause  of  what 
is  ivrong  to  apply  themselves  to  substitute,  or  amend.     Any 
one  will  grant,  that  a  mechanic,  or  an  architect  only,  is  com- 
petent to  diminish,  or  enlarge,  or  vary  the  structure  of  a 
machine,  or  the  plan  of  a  building.     If  an  application  had 
been  made  to  the   attorney  general,   as  has  been  done   in  a 
late  case  on  the  penal  law ;  or  to  some  other  person  of  legal 
abilities,  to  frame  a  bill  to  supply  the  place  of  this  Jictitious 
proceeding  in  ejectment,  embracing  all  the  advantages  of  it, 
and  avoiding  the    inconveniences,  it  would  have  been  advis- 
able.    But  let  us  see  what  has  been  done  by  the  legislature 
themselves. 

By  an  act  of  the  24th  ]March,  1805,  the  form  of  a  v/rit  of 
ejectment  is  devised,  and  proceedings  enjoined.  It  was  evi- 
dent to  men  of  legal  science,  on  the  publication  of  the  act,  or 
promulgation,  that  the  law  v.'as  entirely  defective,  and  most 
unskilfully  drawn;  yet  it  was  not  considered  an  injury  to 
our  jurisprudence,  that  some  step  had  been  taken  towards 
the  getting  quit  of  the  necessity  of  the  use  of  a  fiction  ;  and 


i7&  Law  MiscELLANtEs. 

it  was  not  doubted,  but  that  some  improvement  might  grow 
out  of  what  had  been  done.  Accordingly  by  a  supplement  a 
year  afterward,  some  of  the  most  material  defects  in  the 
law  were  supplied.  What  yet  remains  to  have  it  accommo- 
dated to  all  purposes  of  justice,  with  regard  to  a  claim  of  pos- 
session ;  or  of  property ;  or  of  an  interest  in  real  estate,  will 
in  due  time  be  discovered,  and  the  remedy  may  be  applied. 


"  For  every  man's  land  is  in  the  eye  of  the  law  inclosed  and  set 
"  apart  from  his  neighbour's,  Sec."  Ill  Bl.  Com.  209. 

THIS  principle  of  the  com'mon  law  would  seem  to  be  re- 
strained by  the  act  of  1700  of  this  commonwealth,  and  other 
acts  pari  materia.  The  principal  act  is  chap.  56,  entitled  an 
act  for  regulating  and  maintaining  of  fences  j  1st.  Smith's 
laws  18.  It  was  decided  in  Addison's  district;  and  may 
have  been  elsewhere,  that  this  act,  or  these  acts  giving  a 
special  and  summary  remedy,  did  not  take  away  the  comm.on 
law ;  but,  though  decided  in  my  favour,  in  a  case  at  that  bar, 
I  did  not  approve  of  the  doctrine  laid  down  by  the  court,  in 
all  particulars.  It  did  appear  to  me,  that  it  was  a  change  of 
the  common  law  to  some  extent,  in  consideration  of  the  set- 
tlement and  state  of  the  country ;  where  it  was  contrary  to 
the  convenience  of  the  inhabitant,  to  have  it  supposed  that 
the  owner  of  cattle  could  keep  them  from  trespassing  upon 
the  uninclosed  ground  or  wood-land  of  another.  It  could 
not  be  but  by  running  at  large  that  the  stock]  of  the  settler 
could  be  supported  before  there  were  inclosed  pastures ;  and 
the  obligation  of  having  keepers  to  hinder  them  from  tres- 
passing would  be  inconsistent  with  the  situation  of  the  im- 
prover in  a  new  country.  These  acts  therefore  qualifying 
the  right  which  the  owner  of  the  soil  had  in  his  uninclosed 
grounds,  appeared  to  me  necessary  ;  and  that  an  action  of  tres- 
pass v.ould  not  lie  unless  the  owner  of  adjoining  grounds  had 
done  something  towards  excluding  an  entry  on  his  posses- 
sions, such  as  is  prescribed  by  the  act  in  question. 


Law  Miscellanies.  177 

Be  this  as  it  may,  the  proceeding  at  common  law  not- 
withstanding this  act,  would  seem  to  be  restrained  by  the  act 
21  March,  1806. 4th  Sm.  Laws,  332,  Sec.  13,"  that  in  all  cases 
where  a  remedy  is  provided  or  duty  enjoined,  or  any  thing 
directed  to  be  done  by  any  act  or  acts  of  assembly  of  this 
commonwealth,  the  directions  of  the  said  acts  shall  be  strict- 
ly pursued,  and  no  penalty  shall  be  inflicted  agreeably  to 
the  provisions  of  the  common  law  in  such  cases  further  than 
shall  be  necessarv  for  carrying  such  act  or  acts  into  effect.'* 

In  the  case  referred  to,  the  president  laid  it  down,  that, 
"  In  England,  the  law  is  a  fence  round  every  man's  ground  ; 
and  trespass  may  be  maintained  for  passing  over  the  unin-» 
closed  ground  of  another  against  his  will.  Everyman  must 
take  care  to  keep  his  cattle  from  going  on  the  land  of  another. 
In  this  country  our  circumstances  have  led  us  to  suppose  that 
every  man  must  take  care  of  his  land  that  the  cattle  of  others 
go  not  on  it. 

"  The  act  regulating  fences  gives  anew  and  summary  re- 
medy for  trespasses  on  lands,  enclosed  with  fences  of  the  de- 
scription therein  mentioned;  but  takes  not  away  anj' remedy 
which  existed  before,  and  at  the  time  of  the  passing  that  act. 
The  person  injured  whose  fences  are  of  that  description,  may 
proceed  under  that  act,  or  at  common  law.  And  if  the  fences 
are  not  of  that  description,  the  person  injured,  though  he  can 
have  no  remedy  under  that  act,  may  have  remedy  at  com- 
mon law." 

The  decision  of  the  president  was  correct  in  the  main 
point  of  this  case  ;  for  the  defendant  had  thrown  down  the 
fence^  and  turned  his  cattle  in.  This  took  the  case  out  of  the 
act.  In  other  words  the  act  did  net  apply  to  it :  it  ivas  a 
tre.spns.^  at  common  laiv.     Add.  Rep.  259. 

Z 


if 8  La-w  MiSC£LLAKI£S» 


III  Bl.  Com.  264. 


THE  writ  of  mandamus  m  Pennsylvania,  stands  as  it  did 
at  common  law.  The  British  statute  9  Anne,  c.  20,  bein  j 
since  the  charter  to  William  Penn^  and  not  being  introduced 
here,  could  not  be  reported  by  the  judges  as  in  force  in  this 
commonwealth.  But  the  provisions  of  this  statute  are  salu- 
tary, and  deserve  to  be  introduced  by  an  act  of  the  legislature ; 
and  perhaps  could  not  be  d^one  in  better  terras  stibstantially 
than  in  the  words  of  the  British  statute.  For  it  is  true,  as 
is  said,  in  the  marginal  note  to  this  statute,  Ruffhcad's  edi- 
tion, that  it  \s  clearly  and  correctly  draxvji.  It  was  drawn  by 
Mr.  Justice  Foxvell,  1  black.  95. 

So  far  as  respects  the  mandamusy  h  is  entitled  an  act  for 
rendering  the  proceedings  more  speedy  and  effectual. 

The  frst  provision  is  as  follows;  "  that  where  any  wri* 
of  mandamus  shall  issue,  such  person,  or  persons  who,  by  the 
laws,  are  required  to  make  a  return  to  such  writ,  shall  make 
his,  or  their  return  to  the  first  writ  of  mandamus. 

Sec.  II.  And  that  as  often  as  any  writ  of  mandamus  shall 
issue,  and  a  return  be  made  thereunto, it  shall  and  may  be  law- 
ful to  and  for  the  person,  or  persons  suing  or  prosecuting  such 
writ  of  mandamus,  to  plead  to,  or  traverse  all  or  any  the  ma- 
terial facts  contained  within  the  said  return  f  to  which  the 
person  or  persons  makingsuch  return,  shall  reply,  take  issue,, 
or  demur  :  and  such  further  proceedings,  and  in  such  man- 
ner shall  be  had  therein  for  the  determination  thereof  as  might 
have  been  had  if  the  person,  or  persons  suing  such  writ  had 
brought  his,  or  their  action  on  the  case  for  a  false  return,  and 
if  any  issue  shall  be  joined  on  such  proceedings,  the  person, 
or  persons  suing  such  writ,  shall  and  may  try  the  cause  in  such 
|)lace  as  an  issue  joined,  in  such  action  on  the  case,  should 
or  might  have  been  tried ;  and,  in  case  a  verdict  shall  be 
found  for  the  person,  or  persons,  suing  such  writ,  or,  judg- 
ment given  for  him,  ©r  them  upon  a  demurrer,  or  by  nil  di- 
cit,  c  for  want  of  a  replication,  or  other  pleading,  he  or  they, 
shall  recover  his  or  their  damages,  and  costsyin  such  manner. 


Law  Miscellanies.  179 

as  he  or  they  might  have  done,  in  such  action  on  the  case  as 
aforesaid ;  such  damages  and  costs  to  be  levied  as  in  other 
cases  ;  and  a  peremptory  writ  of  mandamus  shall  be  granted 
without  delay,  for  him  or  them,  for  whom  judgment  shall  be 
given  as  might  have  been  if  such  Keturn  had  been  judged  in- 
sufficient; and  in  case  judgment  shall  be  given  for  the  per- 
son, or  persons  making  such  return  to  such  writ,  he,  or  they, 
shall  recover  his,  or  their  costs  of  suit  to  be  levied  in  man- 
ner aforesaid. 

Sec.  III.  Provided  always  that  if  any  damages  shall  be 
recovered  by  virtue  of  this  act  against  any  such  person,  or 
persons,  making  such  return  to  such  writ,  as  aforesaid,  he,  or 
they  shall  not  be  liable  to  be  sued,  in  any  other  action  or  suit, 
for  the  making  such  return,  any  law,  usage  or  custom  to  the 
contrary,  thereof  in  any  wise  notwithstanding. 

Sec.  IV.  That  it  shall  and  may  be  lawful  for  the  courts 
respectively,  to  allow  to  such  person,  or  persons  respectively 
to  whom  any  writ  of  mandamus  shall  be  directed,  or  to  the 
person,  or  persons  who  shall  sue  or  prosecute  the  same,  such 
convenient  time  respectively  to  make  a  return,  plead,  reply, 
rejoin  or  demur  as  to  the  said  courts  respectively  shall  seem 
just  and  reasonable. 

Sec.  V.  That  this  act  shall  be  extended  to  cases  of  the 
like  nature  with  those  contemplated  by  the  statute  of  the  9 
Anne,  c.  20.  which  British  statute  would  not  seem  to  have 
been  introduced  here,  but  which  as  referring  the  trial  of  facts 
to  a  jury,  is  consonant  with  the  spirit  of  our  constitution,  and 
ought  to  be  adopted. 

The  above  is  the  substance,  and  in  the  words  of  a  bill 
which  I  would  suggest  to  the  legislature. 

By  the  same  statute  9  Anne,  c.  20.  It  is  provided  in 
the  case  of  a  proceeding  by  information  in  the  nature  of  a 
writ  de  quo  warranto. 

"  That  in  case  any  person  or  persons  shall  usui'p  or  in- 
trude into,  or  unlawfully  hold  and  execute  any  office  or  fran- 
chise to  which  that  statute  has  a  reference,  it  shall  and  may 
be  lawful  to  and  for  the  proper  officer  in  each  of  the  respec- 
tive courts,  with  the  leave  of  the  said  conrts  respectively,  t« 


180  Law  Miscellanies^ 

exhibit  one  or  more  information  or  informations  in  the  nature 
of  a  quo  warranto,  at  the  relation  of  any  person  or  persons 
desiring  to  sue,  or  prosecute  the  same,  and  who  shall  be 
mentioned  in  such  information,  or  informations,  to  the  rela- 
tor, or  relators,  against  such  person,  or  persons,  so  usurp- 
ing, intruding  into,  or  unlawfully  holding,  and  executing  any 
of  the  said  offices,  or  franchises,  and  to  proceed  therein  in 
such  manner,  as  is  usual  in  cases  of  information  in  the 
nature  of  a  quo  warranto,  and  if  it  shall  appear  to  the  said 
respective  courts,  that  the  several  rights  of  divers  persons, 
to  the  said  offices,  or  franchises,  may  properly  be  deter- 
mined, on  one  information,  it  shall,  and  may  be  lawful  for 
the  said  respective  courts,  to  give  leave  to  exhibit  one  such 
information  against  several  persons,  in  order  to  try  theirrespec- 
tive  rights  to  such  offices,  or  franchises,  and  such  person  or 
persons,  against  whom  such  information,  or  informations,  in 
the  nature  of  a  quo  warranto,  shall  be  sued,  or  prosecuted, 
shall  appear  and  plead  as  of  the  same  term  or  sessions,  in 
which  the  said  information,  or  informations,  shall  be  filed, 
unless  the  court,  where  such  information  shall  be  filed,  shall 
give  further  time  to  such  person,  or  persons,  against  whom 
such  information  shall  be  exhibited,  to  plead;  and  such  per- 
son, or  persons,  who  shall  sue,  or  prosecute,  such  informa- 
tion, or  informations,  in  the  nature  of  a  quo  warranto,  shall 
proceed  thereupon  with  the  most  convenient  speed  that  may 
be,  any  law  or  usage  to  the  contrary,  in  any  wise  notwith- 
standing. 

*'  And  in  case  any  person,  or  persons,  against  whom  any 
information,  or  informations  in  the  nature  of  a  quo  warranto, 
shall,  in  any  of  the  said  cases,  be  exhibited  in  any  of  the 
said  courts,  shall  be  found,  or  adjudged  guilty  of  an  usur- 
pation, or  intrusion  into,  or  unlawfully  holding  and  execut- 
ing any  of  the  said  offices,  or  franchises,  it  shall  and  may  be 
lawful  to  and  for  the  said  courts  respectively,  as  well  to 
give  judgment  of  ouster  against  such  person,  or  persons,  of 
and  from  any  of  the  said  offices,  or  franchises,  as  to  fine  such 
person,  or  persons  respectively,  for  his  or  their  usurping,  in- 
truding into,  cr   unlawfully  holding  and  exercising  any  of 


Law  Miscellanies.  181 

the  said  offices  or  franchises.  And  alsd,  it  shall  and  may 
be  lawful  to  and  for  the  said  courts  respectively  to  give  judg- 
ment, though  the  relator,  or  relators  in  such  information 
named,  shall  recover  his  or  their  costs  of  such  prosecution  j 
and  if  judgment  shall  be  given  for  the  defendant,  or  defen- 
dants in  such  information,  he  or  they  for  whom  such  judg- 
ment shall  be  given,  shall  recover  his  or  their  costs,  therein 
expended  against  such  relator  or  relators,  such  costs  to  be 
levied  in  manner  aforesaid. 

**  And  it  shall  and  may  be  lawful  to  and  for  the  said 
courts  respectively  to  allow  to  such  person,  or  persons  re- 
spectively, against  whom  any  information  in  the  nature  of  a 
writ  of  quo  warranto,  in  any  case  shall  be  sued  or  prosecut- 
ed, or  to  the  person,  or  persons  who  shall  sue,  or  prosecute 
the  same,  such  convenient  time  respectively  to  make  a  re- 
turn, plead,  reply,  rejoin,  or  demur,  as  to  the  said  courts  re- 
spectively shall  seem  just  and  reasonable." 

It  may  be  seen  that  by  such  a  bill  passed  into  a  law,  a 
trial  by  jury  is  given  in  the  case  of  a  contested  fact;  and 
here  it  has  happened  that  this  statute  of  Anne  has  either  not 
been  extended  by  usage,  and  adoption  of  the  courts  ;  or  that 
this  being  the  case,  it  has  not  been  enacted  with  the  same  or 
similar  provisions  by  the  colonial  legislature,  or  by  the  legis- 
lature of  the  state  since  the  adoption  of  the  constitution 
under  the  revolutionary  establishment,  would  seem  to  me  to 
have  been  owing  to  an  oversight;  or  that  a  case  did  not  oc- 
cur which  brought  the  advantage  or  necessity  of  such  an  en- 
largement of  the  remedy  into  view,  and  an  application  of  the 
jury  trial  Vhere  matters  of  fact  came  to  be  the  subject  of 
enquiry. 

But  the  supreme  court^  who  alone  can  issue  writs  of  man- 
damus^ and  receives  informations  in  the  nature  of  a  7vrit  de 
quo  warranto ;  except  in  the  city  and  county  of  Philadelphia, 
where  courts  of  nisi  prius  are  yetholden,  have  not  the  power 
to  summon  a  jury,  and  try  an  issue  of  fact  in  the  other  coun- 
ties, or  any  of  them;  and  therefore  it  will  be  necessarj'  to 
add  a  clause  enabling  the  courts  at  their  term  to  direct  issues 
to  be  tried  in  thdr  respective  counties  where  the  cause  ol" 


182  Law  Miscellanies. 

complaint  arises  ;  and  in  case  a  county  is  interested,  to  any 
other  county  of  the  district  in  which  that  county  lies,  and 
which  is  nearest,  or  most  convenient  to  that  vicinage. 

That  the  supreme  court,  under  the  present  arrangements, 
has  not  the  power  to  summon  a  jury,  and  to  try  an  issue  was 
determined  in  the  western  district  of  the  supreme  court  9th 
September,  1811.     See  4th  Binney,  117. 

In  consequence  of  this  decision,  a  bill  was  brought  for- 
ward in  the  legislature  in  the  winter  of  1812,  in  the  case  of 
the  mandamus,  and  of  the  information  in  the  nature  of  the 
writ  de  quo  warranto ;  and  the  object  was  to  supply  the  pro- 
visions of  the  statute  of  9  Anne,  c.  20.  and  adapt  them  to  our 
situation.  But  the  bill  was  exceptionable  in  this,  that  in- 
stead of  merely  supplying  what  was  deficient  in  our  law  on 
this  head,  it  undertook  to  comprise  and  specify  all  and  sin- 
gular the  powers  of  the  court  in  the  case  of  the  mandamus, 
and  the  Avrit  de  quo  warranto,  which  it  had  already  by  the 
common  law  ;  which  was  unnecessary,  and  dangerous,  be- 
cause what  was  not  specified,  must  by  implication  be  lost  ; 
and  the  specifying  so  far  as  it  went  brought  into  view,  what 
could  not  be  well  comprehended  by  the  legislature,  as  to  all 
the  qualijications  of  the  powers  ;  for  these  must  be  collected 
from  precedents  and  decisions.  The  bill  therefore,  as  was 
to  be  expected,  fell  through  and  did  not  pass.  There  re- 
mains therefore  a  defect  of  justice  on  this  head  as  to  some  ob- 
jects, and  the  want  of  the  benefit  of  a  trial  by  jury  in  the 
case  of  contested  facts,  so  far  as  respects  the  counties  of  the 
state  out  of  the  city  and  county  of  Philadelphia.  It  will  be 
probably  moved  again  in  the  next  legislature,  and  these  ob« 
s-ervations  may  assist  in  the  deliberations  on  this  subjectt 


III  Bl.  Com.  304.— -Set   off. 


IN  the   digest  to  which  the  commentator  refers  in  the 

margin,  the  term  is  com  pens  alio.     The  etymology  of  which 
IS  eonipenso^  a  compound  of  con  a;id  penso,  which  signifies  a 


Law  Miscellanies.  VQ5 

'weighing  together.  Pendo  is  the  root  which  signifies  to  weigh. 
Pension  the  supine  of  the  verb  as  the  grammarians  say  ;  and 
pensum  a  thing  weighed.  Hence  pensum  a  task  or  thing 
weighed  out  for  manufacture.  All  this  refers  to  the  weigh- 
ing out  one  commodity  against  another,  in  an  original  barter, 
or  in  part  retribution  of  a  commodity  originally  weighed  out 
and  received.  Hence  we  see  from  the  derivation  of  the  term 
the  history  of  the  thing  itself. 

When  barter  ceased,  and  gold  and  silver  became  a  me- 
dium of  commerce,  it  passed  by  weighty  and  notbvthe  7iomi- 
na/and  arbitrary  value  of  a  piece  of  coin ;  and  which  could 
only  be  hy  the  consent  of  a  nation  amongst  the  people  of  that 
nation,  or  by  the  courtesy  of  other  nations,  to  receive  it  at 
that  value.  Weighing  therefore,  in  the  nature  of  the  case, 
must  take  place  and  exist  stilly  where  gold  and  silver,  or 
other  scarce  metal  passes  by  weight.  If  a  roan  owes  twenty 
pounds,  and  can  weigh  out  only  ten,  he  can  compensate^  or 
set  off"  ox\\y  ten. 

It  may  be  worth  while  to  extract  here  for  the  sake  of  the 
classical  student,  the  various  dicta  of  the  codes  which  are 
here  digested^  or  collected  in  the  pandects. 

Definitio.  Compensatio  est  debiti  et  crediti,  inter  se,  con- 
tributio. 

Effectus.  Unusquisque  creditorem  suum,  eundemque 
debitorem,  petentem,  summovet,  si  paratus  est  compensare. 

Utilitas.  Ideo  compensatio  necessaria  est,  quia  interest, 
nostra  potiusnoa  solvere,  quam  solutum  repetere. 

^uod  na'ura  debetur  venit  in  conapensationem. 

This  will  suffice  out  of  that  chapter  which  contains  a  sum- 
mary of  the  whole  law  upon  this  subject. 

Stoppage  or  set  off^  is  the  term  in  the  common  law  of  Eng- 
land. For,  at  the  common  law,  the  demand  of  a  debt  might 
be  stopped  by  sometliing  set  off,  and  going  to  the  whole  of  the 
demand,  ortoa/?ar;.  The  question  was,  what  could  be  set 
off  to  stop  the  demand  in  law  if  a  suit  were  brought.  Any 
thing  going  directly  in  discharge  of  the  demand,  and  made 
and  accepted  with  a  view  to  that  discharge,  there  could  be 
nodoubt,  might  be  setoff.  Orany  thing  done  in  parsaance  of  a 


184  Law  Miscellanies. 

fulfilment  of  a  contract,  or  payment  of  a  debt,  on  the  principle 
of  ?iatural  justice^  could  not  but  be  set  oif.  But  what  was  not  so 
immediately  connected  with  the  contract,  as  necessarily  to  be 
in  discharge  of  it,  might  be  considered  as  collateral  to  it,  and 
the  necessity  of  a  set  oif  did  not  immediately  follow.  The  com- 
mon law  was  narrow  upon  this  point.  See  Montagu  on  the  law 
of  set  off,  and  the  authorities  there  cited,  page  1.  An  ex- 
tent was  given  to  the  law  of  set  off  in  chancery,  or  the  equity 
courts  in  England ;  but  still  not  to  the  extent  of  giving  a  re» 
medy,  to  the  extent  which  natural  justice^  or  public  conveni- 
ence would  require.  Hence  the  statutes  of  set  off.  2  Geo. 
II.  c.  22.  Sec.  13  :  and  8  Geo.  II.  c.  24,  Sec.  4  and  5. 

That  of  2  Geo.  II.  is  in  these  words  ;  that  where  ihcre 
are  mutual  debts  between  the  plaintiff  and  defendant,  or  if  ei- 
ther party  sue,  or  be  sued,  as  executor  or  administrator, 
where  there  are  mutual  debts  between  the  testator  or  intes- 
tate, and  either  party,  one  debt  may  beset  against  the  other* 

That  of  8  Geo.  II.  c.  24.  extends  this  provision  which 
had  been  limited  by  the  former  statute  to  continife  for  the 
term  of  five  years,  and  it  is  in  these  words  ;  "  And  where- 
as the  provision  for  setting  mutual  debts  one  against  the 
other  is  highly  just  and  reasonable  at  all  times,  the  said 
clause  in  the  said  first  recited  act  for  setting  mutual  debts  one 
against  the  other,  shall  be  and  remam  in  full  force  forever." 

And  by  sec.  5.  it  is  enacted,  that  "  by  virtue  of  the  said 
clause  in  the  said  recited  act  contained,  hereby  made  per- 
petual, mutual  debts  may  be  set  against  each  other,  either  by 
being  pleaded  in  bar  or  given  in  evidence  under  the  general 
issue,  in  the  manner  therein  mentioned,  notwithstanding  that 
such  debts  are  deemed  in  law  to  be  of  a  different  nature^  un- 
less in  cases  where  either  of  the  said  debts  shall  accrue  by  rea- 
son of  a  penalty  contained  in  any  bond  or  specialty  ;  and  in  all 
cases  where  either  the  debt,  for  which  the  action  has  been  or 
shall  be  brought;  or  the  debt  intended  to  be  set  against  the 
same,  hath  accrued  cr  shall  accrue  by  reason  of  any  such 
penalty,  the  debt  intended  to  be  set  off,  shall  be  pleaded  in  bar, 
in  which  shall  be  shewn  hozu  much  is  trtily  and  justly  due 
on  either  side;    and  in  case  the  plaintift*shall  recover  in  any 


Law  Ml8CELLA*riES.  185 

Such  action  or  suit,  the  judgment  shall  be  entered  for  no 
more  than  shall  appear  to  be  truly  and  justly  due  to  the  plain- 
tiff'Ahtr  one  debt  being  set  against  the  other." 

This  act  of  8  Geo.  II.  not  only  gave  perpetuity  to  the  for- 
mer; but  also  a  greater  extent  than,  in  the  construction  of 
somejudges,  had  been  put  upon  it.  This  construction  had  been 
that  the  provision  of  a  mutual  set  o^did  not  apply  to  debts 
of  a  different  nature.  By  debts  c^  ^  different  nature  is  meant, 
of  a  different  cla^s  of  actions  referring  to  the  technical  boun- 
daries which  had  been  fixed  between  actions  of  debt,  actions 
of  trespass  on  the  case^  &c.  But  even  under  these  words, 
debts  of  a  different  nature,  the  construction  was  restrained  to 
what,  in  its  nature,  was  a  debt  or  demand  certain  arising  on 
contract.  In  the  case  of  a  specialty  or  writing  under  sealy  a. 
set  off  might  be  made,  but  it  must  be  pleaded,  it  could  not  be 
given  in  evidence  with  notice.  And  in  the  case  of  a  penalty 
pleaded  as  a  set  off,  it  could  not  be  allowed ;  and  the  debt 
really  due  was  narrowed  to  what  could  be  shewn  by  payments  j 
for  under  the  plea  unliquidated  damages  could  not  be  set  off; 
that  is,  the  jury  at  the  bar,  would  not  be  suffered  to 
hear  all  circumstances,  and  liquidate  the  damages  a  de- 
fendant had  sustained  by  reason  of  non-compliance  with  a 
contract  with  the  plaintiff. 

It  is  also  observable,  under  these  statutes,  that  no  pro- 
vision is  made,  that  if  the  defendant  under  his  plea,  or  notice 
of  set  off,  could  shew  that  he  had  overpaid,  or  that  his  set  off 
was  such  as  brought  the  balance  in  his  favour,  he  could  not 
have  judgment  for  it,  but  must  bring  his  action  for  the  ba- 
lance ;  in  which  case  if  even  an  overhauling  of  the  whole 
controversy  could  be  avoided,  yet,  a  counter  suit  must  fol- 
low, and  nexo  costs  be  incurred. 

Before  these  statutes  of  2  Geo.  II.  and  8  Geo.  II.  which 
passed  in  the  year  1 729,  we  had  an  act  of  assembly  of  Penn- 
sylvania of  1  705.  And  it  has  been  with  a  view  to  refer  the  stu- 
dent to  this  act  as  going  farther  than  the  English  statutes, 
that  I  have  made  this  note.  For,  thou^li,  our  act  was  before 
theirs,  yet  they  did  not  chuse  to  follow  it  to  the  whole  ex- 
tent, if  they  had  at  all  heard  of  it,  which  is  possible;  but  not 

A  A 


186  Law  Miscellanies. 

probable  that  they  had  not  heard  of  it,  as  every  act  of  the 
colonial  legislature  was  liable  to  a  repeal  by  the  king  and  coun- 
cil, and  could  not  but  be  reported  to  them,  and  in  that  case 
could  not  well  but  come  to  the  knowledge  of  at  least  one 
branch  of  the  legislature,  the  house  of  Lords.  But  whether 
owing  to  the  embarrassment  of  a  court  of  chancery  upon 
whose  wonted  jurisdiction  they  did  not  wish  to  trench ;  or  to 
the  advantage  of  having  it,  as  not  rendering  it  necessary,  in 
their  opinion,  to  go  so  far  in  some  particulars,  the  whole 
extent  was  not  given  by  the  words  of  those  acts,  which  by  the 
provisions  of  our  act  of  assembly,  is  established.  In  order 
the  better  to  compare  the  tWQ  English  statutes  with  our  act  of 
assembly,  we  shall  extract  it  here. 

It  is  entitled,  "  An  act  for  defalcation."  The  etymon 
of  this  term  is  from  Falx  a  latin  word  for  a  pruning  knife* 
Hence  falco  to  amputate,  or  prune.  Defalco,  the  compound, 
to  prune  from  :  So  that  vi  termini,  it  expresses  the  pruning 
a  demand  by  shewing  that  it  is  less  than  it  purports  to  be, 
by  reason  that  it  ought  to  be  made  less  by  something  shewn 
against  it.     Let  us  now  see  the  act. 

"  If  two  or  more,  dealing  together  be  indebted  to  each 
other  on  bonds,  bills,  bargains,  accounts  or  the  like,  and  com- 
mence an  action  in  any  quarter  of  this  province,  if  the  de- 
fendant cannot  gainsay  the  deed,  bargain  or  assumption, 
upon  which  he  issued,  it  shall  be  lawful  for  siich  defendant 
to  pi  r-ad  payment  of  all  or  part  of  the  debt,  or  sum  demand- 
ed, and  give  any  bond,  bill,  receipt,  account,  or  bargain,  in 
evidence,  and  if  it  shall  appear  that  the  defendant  hath  fully 
satisfied  the  debt  or  s.im  demanded,  the  jury  shall  find  for 
the  difendant,  and  judgment  shall  be  entered,  that  the  plain- 
tiff shall  take  nothing  by  his  writ,  and  to  pay  the  costs.  And 
if  it  should  appear  that  any  part  of  the  sum  demanded  be 
paid,  then  so  much  as  is  found  to  be  paid,  shall  be  defalked, 
and  \}c\'i  plaintiff  shall  have  judgment  for  the  residue  only, 
with  costs  of  suit.  But  if  it  appear  to  the  jury,  that  the 
plaintiff  is  overpaid,  then  they  shall  give  in  their  verdict  for 
the  defendant  and  withal  certify  to  the  court  how  much 
they  find  the  plaintiff  to  be  indebted,  or  in  arrear  to  the  de- 


Law  Miscellanies.  187 

fenclant  more  than  will  answer  the  d<rbt  or  sum  demanded  ; 
and  the  sum,  or  sums  so  certified,  shall  be  recorded  with  the 
verdict,  and  shall  be  deemed  as  a  debt  of  record,  and  if  the 
plaintiff  refuses  to  pay  the  same,  the  defendant  for  recovery 
thereof,  shall  have  a  scire  facias  against  the  plaintiff  in  the 
said  action  ;  and  have  execution  for  the  same  with  the  costs 
of  that  action."  There  is  nothing  said  about  executor  or  admi- 
nistrator in  our  act  as  being  unnecessary  ;  because  a  provision 
which  is  made  for  the  original  parties,  must  extend  to  the 
representatives, 

"  Mutual  debts''''  are  the  words  in  the  English  acts.  This 
answers  to  the  word,  debitum,  or  what  is  due,  in  the  Ro- 
man law,  and  can  have  no  reference  to  the  techncal  distinc- 
tion of  a  debt  by  specialty  ;  or  of  a  certain  sum  by  contract, 
or  ill  account  settled.  It  must  have  a  more  extensive  mean- 
ing, and  be  clear  of  what  is  merely  technical  in  the  denomi- 
nation of  demands.  But  our  acL  invi'oduces  a  specification 
of  bond.s\  bills,  bargains^  promises^*  accounts,  or  the  like. 
The  word  bargain  has  a  sweeping  eftect,  and  cannot  but  let 
in  unliquidated  damages.  So  that  a  defend.mt  in  answer  to 
a  demand  on  one  bargain  may  be  let  in  to  give  evidence  of  a 
claim  on  his  part,  on  another.  But  still  it  must  be  a  bargain 
in  the  course  of  dealing  together.  It  is  no  objection  and 
ought  to  be  none,  that  the  damages  on  such  bargain,  are 
not  H'luidatedy  because  on  iiolice  given,  they  can  be  liquidat- 
ed by  the  same  jury  that  hears  the  plaintiff's  demand. 
And  in  case  of  apenalty  we  make  no  distinction,  because  we 
can  enquire  in  the  case  of  a  bond  what  v.as  the  real  debt ; 
and  we  can  setoff  what  is  really  due.  Evtn  in  England  the 
liberal  mind  of  Lord  Mansfield,  saw  that  this  could  be  done. 
"  He  said  he  expected  that  it  would  have  been  put  upon  the 
foot  of  setting  off  the  sum  that  the  defendant  imagined  to  be 
really  due  for  the  damages  he  sustained.  But  he  now  perceiv- 
ed that  it  was  insisted  the  xvh  Ic  penalty  might  be  set  off. 
He  said  it  is  clearly  most  unjust  and  contrary  to  iht  in- 
tention of  the  acts  of  parliament,  that  the  whole  penalty  should*, 
be  admitted  to  be  pleaded  by  way  of  set  off  when,  perhaps, 
a  very  small  sum  was  really  due  for  such  damages  as  the  de- 


188  Law  Miscellanies. 

fendant  had  actually  sustained."  The  judges  were  fetterccl 
by  the  principle  that  the  penalty  could  not  but  be  considered 
as  the  real  debt,  in  a  court  of  law. 

For  the  construction  of  our  act  of  assembly  as  to  what 
demands  may  be  set  off,  see  Smith's  laws,  51. 

As  to  the  pleading,  or  giving  in  evidence  with  notice^ 
there  is  a  provision  subsequent  to  this  act  by  that  of  the  14 
Feb.  17i9,  30;  of  which  see  in  the  same  note  to  Smith's 
edition  of  the  laws  of  Pennsylvania. 

The  scire  facias  given  by  our  act  of  assembly,  which  is 
in  the  nature  of  a  summons  to  shew  cause  why  execution 
shall  not  go  for  the  sum  certified  to  be  found  for  the  defen- 
dant. This  provision  is  a  novelty.,  and  not  adopted  by  the 
English  acts,  though  for  what  reason,  I  am  not  able  to  com- 
prehend. For  unquestionably  it  must  be  considered  an  im- 
provement. 

Where  in  case  of  a  set  off  a  balance  is  found  for  the  de- 
fendant, but  for  this  provision  he  must  bring  his  action  and 
declare.  The  scire  facias,  here,  is  a  declaration  at  once, 
and  will  set  forth  the  ground  on  which  the  demand  is  made 
without  circuity.  It  is  in  the  nature  of  a  new  action  as  every 
scire  facias  is,  but  springing  out  of  the  former  suit.,  the  con- 
nection and  relation  is  immediately  seen  without  pleading, 
or  averment;  and  delay  is  avoided,  and  expence  to  the  par- 
ties. 

Though  a  set  off  is  a  matter  of  right  to  a  defendant,  yet 
Ke  is  not  bound  to  make  it.  He  may  prefer  as  it  may  be  ad- 
visable, to  do  in  many  cases,  the  keeping  demands  separate.,  as 
things  taken  singly  may  be  better  understood, 

I  have  been  the  more  particular  in  an  analysis  of  this 
act  of  assembly,  that  the  student  may  distinguish  the  reason 
of  the  construction  of  the  law  of  set  off  by  the  English  judges, 
and  by  the  decisions  of  our  courts,  and  also  that  the  respect 
due  to  the  good  sense  of  our  early  legislators  lyuiy  appear. 


Law  Miscellanies.  189 

"  Also,  all  actions  of  trespass,  (quare  clausum  fregit,  or  other- 
♦'  wise)  detinue,  trover,  replevin,  account,  and  case,  (except  upon 
*  accounts  between  merchants)  debt  on  simple  contract,  or  for  ar- 
*'  rears  of  rent,  are  limited  by  the  statute  last  mentioned  (21  Jac. 
«  1  c.  16.)  to  six  years  after  the  cause  of  action  commenced; 
«  Sec."  Ill  Bl.  Com.  3j7. 

THIS  statute  is  a  provision  of  wisdom  and  humanity,  but 
it  must  be  restrained  to  the  reason  of  it.  It  is  founded  on 
the  policy  of  protecting  honest  but  improvident  individuals 
who  are  not  careful  in  taking  vouthers  of  their  payments, 
and  there  is  a  presumption  arising  in  human  transactions  that 
a  debt  not  demanded  for  a  length  of  time,  is  paid,  because 
creditors  do  not  usually,  except  in  particular  cases,  a  continu- 
ance, &c.  suffer  debts  to  lie  over,  without  being  demanded, 
a  great  length  of  time.  The  length  of  time  which  the  sta- 
tute has  fixed  upon,  as  a  general  rule,  when  the  presump- 
tion shall  be  considered  as  having  arisen  is  six  years ;  but  what- 
ever will  meet  that  presumption,  and  remove  it,  shall  take 
the  case  out  of  the  statute.  It  is  not  therefore  a  promise  to 
pay  the  debt,  but  an  acknowledgment  of  it,  that  meets  the 
presumption,  and  takes  a  case  out  of  the  reason  of  the  law. 
As,  in  contracting  the  debt,  there  is  seldom,  or  never,  an  ex- 
press promise  to  pay,  ortotidem  verbis,  as  I  will  pay,  the 
law  is  said  to  raise  it^or  to  imply  ^  promise,  so  it  is  said  that 
by  an  acknowledgment  of  the  debt ^  the  former  promise  is  re- 
vived or  continued^  which  is  sometimes  the  phraseology 
or,  in  other  words  that  a  new  promise  is  implied,  or  raised, 
nor  need  the  acknowledgment  be  express.^  it  may  be  inferred 
from  circumstance^  or  expressions  that  imply  the  not  hav- 
ing paid  the  debt. 

What  will  take  a  case  out  of  the  statute,  must  be  what 
will  constitute  an  exception  to  it.  In  that  case  it  is  as  if  it  had 
not  been ;  with  regard  to  any  effect  upon  the  case. 

It  was  early  felt  by  the  judges  that  a  case  not  within  the 
reason  of  the  statute  ought  not  to  be  considered  as  within  it. 
It  would  be  "  establishing  iniquity  bylaw,"  so  to  consider  it. 
But  on  a  simple  contract  debt^  to  which  the  statute  alone  ap- 
plied, in  order  to  avoid  wager oilaw^or  a  defendant  swear- 


190  Law  Miscellanies. 

ing  himself  clear,  an  action  on  the  case  must  be  brought,  and 
the  declaration  laid  with  an  assumpsit.  In  order  to  meet 
this  form  the  defendant  pleads  non  assumpsit,  infra  sexannos 
which  prima  facie  brings  him  within  the  provision  of  the 
statute.  The  plaintiff  instead  of  replying  specially  the  fact 
of  an  acknowledgment,  or  confession  of  the  debt  within 
that  time,  joins  issue  on  the  plea  of  non  assumpsit ;  probably, 
at  an  early  period  the  narrow  minds  of  the  common  law  judg- 
es, not  being  bold  enough  to  encounti-r  the  statute,  on  the 
reason  of  it,  and  it  not  being  known  that  the  special  replica- 
tion of  an  acknowledgment  would  be  admitted,  or  from 
mere  oversight  such  replication  not  having  been  made.  In 
a  hard  case  therefore  the  common  law  courts  would  be  dis- 
posed to  adopt  the  astutia  of  considering  an  assumpsit,  to 
arise  from  an  acknowledgment  of  the  debt,  and  to  be  a  new 
promise.  But  it  is  but  Sijictioii  and  is  embarrassing  to  the 
mind  of  the  students  for  it  is  not  consistent  with  the  truth  of 
the  case,  and  is  in  fact,  not  a  new  promise,  nor  even  evidence 
of  a  new  promise,  but  of  the  old  not  having  been  complied 
with,  or  fulfilled.  It  is  for  this  reason,  that  I  wish  we  could 
get  quit  of  this  language  reviving-^  or  contimdng  a  promise, 
and  take  common  sense  in  our  forms  of  pleading.  The  truth 
is,  the  plaintiff  says,  the  defendant  did  contract  to  pay.  The 
defendant  says,  I  have  paid.  For  if  I  had  not  paid,  is  it 
probable  you  would  not  have  called  upon  me  before  this  ?  I 
have  paid,  but  I  have  lost  the  proof  of  that  payment;  ergo 
the  statute  of  6  years.  But  says  the  plaintiff  you  have  ack- 
nowledged within  the  6  years  that  you  have  not  paid ;  for 
which  reason  you  cannot  claim  the  benefit  of  the  provision. 
The  matter  conducted  in  pleading  in  such  shape  as  this, 
would  be  intelligible.  Assumpsit,  non  assumpsit ;  replica- 
tion, acknowledgment ;  and  hereupon  issue  joined.  It  would 
avoid  the  whole  mummery  oi  new  promise^  or  reviving;  or 
continuing  the  debt. 

In  the  case  of  an  express  promise  taking  the  case  out  of  the 
statute,  an  issue  on  non-assumpsit  infra  sex  annos  n.ay  be 
joined,  v/iihout  logical  blemish;,  or  the  necessity  of  asmtia 
to  support  a  Action. 


Law  Miscellanies.  191 

III  Bl.  Com.  352. 

There  never  was  a  power  under  the  judiciary  system  of 
Pennsylvania,  as  at  first  adopted,  or  since,  to  change  the 
venue;  and  this,  owing  to  the  organization  of  the  courts,  and 
the  laws  providing  for  the  return  of  jurors.  The  supreme 
court,  as  at  first  constituted  had  no  or?^i;2«/ jurisdiction,  nor 
has  had  since  at  any  time  unless  within  the  city  and  county  of 
Philadelphia.  No  original  writ  therefore  could  issue  from  the 
supreme  court  to  any  county,  as  was  the  case  with  the  supe- 
rior courts  in  England.  Every  cause  must  come  into  the  su- 
preme court  by  removal.  Issue  having  been  joined  in  the 
court  below,  or  joined  in  the  supreme  court  after  removal 
thither,  the  venire  issued  to  the  sheriff  of  the  county 
from  whence  the  cause  had  been  removed,  commanding 
hina  to  summon  jurors;  or  rather  to  distrain  them:  for, 
following  the  English  theory,  they  were  supposed,  in 
contemplation  of  law,  to  have  made  default  before  on  a 
summons  served.  The  sheriff  was  commanded  to  have 
these  at  the  sitting  of  the  supreme  court  in  term,  nisi  priuSy 
that  is,  unless  the  judges  of  the  supreme  court  came  into  the 
county  before  that  term  holden.  But  this  was  matter  of  form 
merely,  and  without  reason,  following  the  theory  of  the  judi- 
ciary system  of  England,  and  adopting  the  precedent  of  the 
writ.  It  was  not  the  understanding  that  any  trial  was  to  be 
had  at  har^  or  the  jurors  to  attend  at  the  sitting  of  the  term. 
For  it  is  provided  by  the  act  constituting  the  court,  22d  May 
17'22,  "that  upon  issue  joined  in  the  supreme  court,  such  is- 
sue shall  be  tried  in  the  county,  from  whence  the  cause  was 
removed,  before  the  judges  of  the  supreme  court  or  any  two 
of  them,  who  are  hereby  empowered  and  required  to  go  the 
circuit,  into  the  respective  counties;  and  to  do  generally  all 
those  things  that  shall  be  necessary  for  the  trial  of  any  is- 
sue as  fully  as  the  justices  of  nisi  pritis'm  England  may  or 
can  do.  This  reserves  to  the  court  in  term,  the  giving  judg- 
ment; or  hearing  motions  for  a  new  trial:  or  in  arrest  of 
judgment.  It  may  be  seen  therefore  that  under  this  act  there 
can  be  no  trial  at  bar;  by  calling  a  jury  from  the  county  ; 


Q^ 


192  Law  Miscellanies. 

nor  can  there  be  a  change  of  the  venue  by  calling  a  jury  from 
one  county  to  another. 

By  an  act  of  25  Sept.  1 806,  original  jurisdiction  under  cer- 
tain restrictions,  was  given  to  the  supreme  court  within  the 
county  and  city  of  Philadelphia  ;  and  in  that  case  there  might 
be,  and  frequently  were  trials  at  bar,  all  the  judges  sitting  ;  but 
it  has  been  since  restored,  but  limited  by  act  of  24th  Feb* 
1806,  and  a  removal  in  civil  actions  restrained  ;  but  no  issue* 
in  fact  are  to  be  tried  in  bank;  and  nisi  prius  courts  to  be 
holden  by  a  single  judge  ;  so  that  trial  at  bar  cannot,  at  this 
time,  exist  in  any  place.  I  consider  all  these  particulars  a 
great  improvement  of  the  system ;  and  I  would  consider  it 
a  farther  improvement  to  have  the  trials  oiissues  in  fact  takcik 
away  from  the  supreme  court,  even  at  nisi  prius  sittings  in 
the  city  and  county  of  Philadelphia,  as  is  the  case  in  the 
other  counties  in  the  state. 

As  to  trial  by  jury,  too  much  cannot  be  said  for  it  in  a 
criminal  case,  where  the  necessity  oi  unanimity  is  more  recon- 
cileable  to  reason.  For  there  is  a  presumption  of  law  in  fa- 
vour of  the  accused,  that  he  is  innocent  j  and  it  is  the  maxira, 
that  if  there  is  a  doubt,  acquit.  Where  one  or  more  of  the 
jury  doubt  so  much  as  to  stand  out,  after  being  kept  together 
a  reasonable  time,  and  no  appearance  of  agreeing,  it  may  be 
evidence  that  there  is  ground  of  doubt;  and  it  being  ne- 
cessary to  keep  the  jury  together  in  the  case  of  felony,  with- 
out meat  or  drink  until  they  are  agreed.  It  is  a  reason  that 
such  a  principle  may  be  admitted  in  foro  conscientise  t» 
justify  a  concession  in  favour  of  the  accused. 

In  a  civil  action  there  is  no  legal  presumption  on  one  side 
or  on  the  other ;  and  the  court  have  a  power  to  allow  the 
jury  to  eat  and  drink  ;  and  may  permit  the  finding  a  privy 
verdict,  and  separating ;  or  upon  cause  may  discharge.  Tri- 
als per  pais  250.  By  our  act  of  assembly  21  March,  1806, 
this  power  is  impliedly  sanctioned  in  the  oath  prescribed  to 
be  taken  by  the  jurors ;  "  a  true  verdict  give  according  to 
■  the  evidence  unless  dismissed  by  the  court,  or  the  cause  with- 
drawn by  the  parties." 


Law  MiSCELLANltB.  193 

It  might  seem  expedient  to  give  the  district  courts  the 
power  to  chringe  the  venue  in  the  case  where  a  county  was 
intc;rested,  which  is  quasi  a  corporation;  and  the  presumption 
might  be  that  an  impartial  trial  eould  not  be  expected. 


Ill  Bl.  Cora.  ^77. 

IT  is  the  understanding  of  some  judges  that  a  rvrit  cf 
error  will  not  lie  upon  a  case  stated.  I  cannot  say  that  I  have 
ever  known  it  so  decided.  But  the  adding  to  the  state- 
ment for  the  opinion  of  a  court  that  it  "  shall  be  consi- 
dered in  the  nature  of  a  special  verdict^  would  seem  to  imply 
that  there  is  some  necessity  for  such  addition.  I  do  not 
see,  that,  unless  at  nisi  prius,  there  can  be  any  necessity  for 
it.  There,  indeed,  there  may  be  a  good  reason.  Because 
facts  stated  by  the  parties,  are  in  the  nature  of,  or,  rather, 
in  the  place  of  a  special  verdict :  and  this,  because,  as  the 
commentator  says,  the  facts  mast  be  as  if  the  jury  had  lound 
them;  and  be  made  a  part  of  the  proceedings.  But  where 
the  statement  is  made  immediately  to  the  court  in  term,  and 
made  ipso  facto,  a  part  of  the  proceedings,  they  do  appear 
upon  the  record;  and  there  would  not  seem  to  be  a  necessi- 
ty, or,  even  a  propriety,,  in  tacking  to  the  tail  of  a  statement, 
that  it  was  to  be  considered  in  the  nature  of  a  special  verdict. 
The  truth  is,  I  take  it,  that  the  appendage  has  been  trans- 
ferred from  an  exigence  where  it  was  proper,  to  an  occasion 
w^here  it  was  not  wanted  ;  and  this  without  examination  of 
the  reason  of  the  use.  Because,  that,  in  a  case  stated,  at  nisi 
prius,  it  was  added,  that  it  should  be  in  the  nature  of  a  spe- 
cial verdict,  for  which  there  was  reason ;  when  a  case  came 
to  be  stated  for  the  opinion  of  the  court,  in  term,  pursuing 
the  form  of  a  case  at  nisi  prius,  it  was  added  that  it  should 
be  in  the  nature  of  a  special  verdict  without  distinguishing 
the  difference. 

I  could  assign  a  reason,  and  it  is  the  only  possible  reason 
that  I  could  assign,  for  this  sublevamen,orwingto  thestate- 

B  B 


194  Law  Miscellanies. 

inent ;  or  tail,  as  I  have  already  called  it,  viz.  that  it  is  to 
be  understood  in  submitting  to  the  opinion  of  the  court,  that 
a  writ  of  error  is  not  to  be  brought ;  but,  it  would  be  more 
intelligible  that  this  should  be  expressed,  and  to  have  it  said, 
that  a  writ  of  error  was  not  to  be  brought. 

But  in  term,  and  in  a  case  stated  to  a  court  in  the  last  re- 
sort, our  supreme  court,  it  is  still  added,  that  it  is  to  be  in 
the  nature  of  a  special  verdict.  It  cannot  therefore  be  to  save 
the  bringing  a  writ  of  error  that  this  is  added.  The  truth  is, 
it  is  unmeaning,  and  without  any  visible  use.  ItX)Ught  there- 
fore to  be  rejected.  It  can  answer  no  possible  end  but  to 
puzzle  the  student  to  know  what  to  make  of  it.  He  must 
think  it  either  mystery,  or  magic,  or  nonsense,  where  it  is 
supported  by  no  visible,  artifcial,  or  moral  reason. 


"  Thus  much  for  judgments;  to  which  costs  are   a  nccessaiy 
"  appendage,  &c."  Ill   Bl.  Com.  399. 

It  will  be  useful  for  the  student  to  have  some  idea  of 
the  difference  of  the  law  of  Pennsylvania  from  that  of  Eng- 
land in  regard  to  costs.  It  is  observable  that  in  original 
writs  in  England  j  or  writs  instituting  process,  there  is  a 
condition  directory  to  the  officer  serving  these  writs ;  that, 
if  he  (the  plaintiff)  shall  make  you  secure  of  prosecuting  hi'i 
claim,  ^c.  This  security  was  at  the  beginning  a  matter  oi' 
substance  J  and  real  persons  were  required;  not,  as  since, 
mer  ly  nominal,  John  Doe  and  Richard  Roe.  But  when  the 
law  ceised  to  be,  that  the  plaintiff,  for  his  false  clamour,  or 
groundUss  complaint,  should  be  amerced,  these  sureties  be- 
came nominal ;  and,  hud  it  not  been  for  thtform  of  the  writ 
bting  still  preserved  with  this  condition,  even  John  Doe  and 
Richard  Roe,  might  have  been  left  out.  But  in  Pennsylva- 
nia we  have  no  such  condition  in  our  writs  ;  and  therefore 
John  Doe  ami  Richard  Roe  need  not  be  attached  to  the  writ, 
Or  declaration  persuing  the  writ.  Pledges  of  prosecution  are 
idle  words,  and  need  not  be  introduced. 


Law  Miscellanies.  ,   195 

What  was  the  necessity  of  security  to  prosecute  the  suit, 
at  an  early  period  ?  It  was  because  that  parties,  plaintiff  or 
defendant,  were  liable  to  an  amercement ;  the  plaintiff  for 
complaining  falsely;  the  defendant  for  j^roundlessly  rcsisiing 
a  just  claim.  But  when  costs  were  given  by  sia.utc;  or 
came  to  be  given  in  certain  cases,  which  the  common  law  eo 
nomine  did  not  allow,  all  idea  of  amrrcement  ceased,  and 
the  costs  are  the  amercement ;  or  answer  the  same,  ana  a  bet- 
ter purpose;  some  allowance  to  the  party  for  what  has  been 
expended  in  prosecuting  or  sustaining  a  suit.  But  it  is  un- 
der the  idea  of  an  amercement  that  the  form  still  remains  of 
calling  the  plaintiff  in  the  case  of  a  nonsuit. 

It  is  on  the  same  principle  that  the  paying  a  fine  to  the 
king  in  case  of  ajudgment  against  a  party  has  ceased  in  Eng- 
land, costs  being  deemed  a  sufficient  restraint  against  a  vex- 
dtious  suit,  or  groundless  defence.  But  it  is  still  under  the  idea 
of  vexation  in  the  brhiging  the  action,  that  executors  and  ad- 
ministrators  in  England  do  not  pay  costs  ;  for  the  reason 
given  is  that  they  cannot  be  supposed  to  be  cognizant  of  the 
ground  of  action,  in  those  whom  they  represent,  in  such  a 
manner,  as  that  the  law  can  infer  a  vexation.  But  fine  and 
amercement  ceasing,  and  costs  being  in  place  of  these  in  Eng- 
land, the  exemption  of  executors  and  administrators  from 
costs,  ought  to  have  ceased  also.  Here  it  has  never  been  in- 
troduced; and  no  distinction  taken  as  to  these  from  other 
parties  to  a  suit. 

The  absurdity  did  not  exist  at  the  common  law,  so  far  as 
respected  the  plaintiff,  that  he  could  have  no  allowance  for 
his  costs  of  writ,  service  by  the  sheriff,  and  return,  docket- 
ing by  the  clerk,  filing  of  papers,  and  continuance  of  suit, 
together  with  subpoena  for  witnesses,  &c.  An  allowance  was 
made  for  these  in  the  damages  assessed  by  the  jury,  in  all 
cases  where  damages  were  recoverable-  But  as  the  jurj'  could 
make  but  an  estimate  or  guess  as  to  these,  the  costs  actually 
laid  out,  were  a  most  certain  criterion  ;  and,  therefore  given 
by  the  statutes ;  and  these  added  by  way  of  increase  of 
damages,  by  the  court.  For  even  before  the  statute  of  Glou- 
cester "  the  justices  in  Eyre  were  wont  at  their  iters  to  assess 


196  Law  Miscellanies. 

the  costs  of  the  plaintiff,  when  he  prevailed,  at  a  reasonable 
sum  exclusive  of  and  unblended  with  the  damages  which  he 
recovered ;  and  that  custom  prevailed  till  the  introduction 
of  the  modern  justices  of  assize  and  nisi  prius  ;  at  which 
time  it  became  necessary  that  the  costs  should  be  taxed  by 
the  court  above,  and  not  by  the  judges  on  their  circuits."  Gdb. 
hist.  c.  p.  266.  When  the  jury  therefore  gives  a  verdict 
even  in  the  case  of  debt  or  ejectment,  they  say  we  find  for 
the  plaintiff  six  cents  damages,  and  six  cents  costs,  in  order 
that  the  court  may  consistently  add  the  increase  of  costs  to 
the  damages.  In  cases  where  the  verdict  is  for  damages,  and 
•not  an  ejectment,  or  a  debt  on  bond  with  a  penalty,  or  in  co- 
venant with  a  penalty,  &c.  they  say  only  we  find  so  much  da- 
mages, and  six  cents  costs. 

But  is  there  any  thing  to  hinder  the  jury  still  to  include 
costs  in  the  damages  and  imder  that  idea  to  say  we  find  so 
much  damages  without  costs.  I  should  think  there  is  not ; 
it  is  the  usage  and  practice.  Under  the  statutes  which 
provide  that  damages  being  found  under  a  certain  sum,  there 
shall  be  no  costs,  or  no  more  costs  than  dan)ages,  the  jury 
who  are  the  arbiter  of  damages,  and  with  whom  it  must  be 
to  bring  the  damages  under  the  sum,  may  say  we  find  tvith 
or  xvithout  costs.  This  is  no  more  than  to  say,  we  have  les- 
sened the  damages  with  a  view  to  that.  For  costs  are  in  a 
legal  sense  included  in  the  xvord  damages^  2  East.  296 ;  and 
if  said  to  be  added  by  the  court,  it  is  the  same  thing  as  if  ad- 
ded by  the  jury  themselves.  Damages  are  exemplary  as  well 
as  compensatory ;  and  it  is  not  therefore  the  exact  compen- 
sation that  is  alone  to  be  the  measure.  See  the  error  in  the 
reasoning,  2  Cain,  213.  The  case  in  Salk.  207.  was  the  re- 
sult of  good  sense,  and  according  to  the  reason  on  which  the 
statutes  passed.  The  jury  giving  costs,  even  where  the  da- 
mages found  would  not  otherwise  justify  the  court  to  encrease, 
took  the  case  out  of  the  statutes  and  formed  an  exception. 

The  impracticability  of  making  but  an  estimate  of  the 
costs  in  the  action,  is  a  reason  against  including;  or  being 
supposed  to  include;  but  it  is  an  embarassing  circumstance 
to  be  obliged  to  find  damages  to  a  certain  extent,  In  order 
to  carry  costs,  in  a  cage  where  a  jury  may  think  that  the  plain- 


Law  Miscellanies.  197 

tiiFhad  good  cause  of  action,  but  that  the  excuse  or  extenua- 
tion of  damages,  which,  from  evidence  which  the  plaintiff 
could  not  anticipate,  might  reduce  in  such  a  way  that  small 
damages,  on  the  defendant  paying  costs ^  might  suffice.  Rea- 
son and  convenience  appear  to  me  in  favour  (;f  this  principle, 
as  extending  to  all  cases  in  which  damages  are  to  be  reco- 
vered and  costs  given.  Such  finding  by  the  jury  ought  to 
be  considered  as  takmg  the  case  out  of  the  general  lule. 

It  is  a  diflf-rent  matter,  and  more  difficult,  to  say  what 
the  jury  may  do,  where  an  action  is  commenced  in  an  inferior 
co'irt,  and  removed  by  the  plaintiff;  and  where  it  is  provided 
that  no  more  costs  shall  be  reco\  ert  d  than  daniagt  s.  1  should 
think  in  such  a  case  a  jury  coidd  not  find  a  less  sum,  and  say, 
ivUh  costs,  because  it  is  ihe  policy  oi  the  law  to  avoid  the  de- 
lay v;hich  the  removal  of  a  cause  gives,  and  also  to  save  the 
time  of  the  superior  court  for  the  determination  of  the  more 
important  actions.  But  under  our  acts  of  assembly  in  the  case 
of  referees,  the  trial  by  jury  being  taken  away,  in  the  first 
instance,  there  is  less  reason  on  an  appeal,  to  limit  the  power 
of  the  jury  in  this  particular,  so  as  to  say,  with  or  without 
costs.  See  1  Bin.  61.  4  Bin.  5.  In  the  case  of  penal  ac- 
tions, or  actions  on  penal  statutes,  where  a  certain  sum,  in  the 
nature  of  a  mulct,  is  to  be  recovered,  the  jury  cannot  give 
less;  costs  must  follow.  Under  the  statute  22d,  23d,  Cha. 
II.  reported  by  the  judges  of  the  supreme  court  to  have  been 
introduced  here,  where  the  judge  must  certify  in  order  to 
entitle  to  costs,  it  is  inferable  from  the  policy  of  the  statute, 
that  the  jury  cannot  say,  with  or  without  costs,  so  as  to  ex- 
clude the  necessity  of  the  certificate. 


Ill    Black.  Com.  406. — writ  of  error. 

By  an  act  of  Assembly  of  6  March,  1812.  Sec.  11.  it  is 
provided  that  "  when  more  than  one  exception  is  taken,  or 
point  made  in  any  court  of  common  pleas  ;  or  other  court  of 
inferior  jurisdiction,  and  the  same  has  been  duly  removed 


19^  Law  Miscfllanies. 

to  the  supreme  court  for  their  decision,  the  judges  of  the 
supreme  court,  are  enjoined  and  required  to  give  their  opi- 
nion on  every  point,  and  exception  taken,  and  signed  in  the 
inferior  court."  It  is  no  small  reproach  upon  the  courts  ,f 
error^  that  it  should  be  found  necessary  to  make  such  a  pro- 
vision. It  had  its  origin  in  the  indolence,  or  xveakutss^  or 
timidity  of  judges,  and  unwillingness  to  take  mure  upon  them 
in  deciding  points  of  law  than  became  unavoidable  in  the  un- 
dertaking to  affirm,  or  reverse  ajudgment.  But  the  defendant 
in  a  writ  of  error  was  stillleft  at  a  loss  to  know  whether  the 
other  errors  which  had  been  assigned  v/ere  erroneous ;  so  that 
it  might  behoove  him  to  pray  amendments  ;  or,  if  a  plaintiff, 
to  discontinue,  and  bring  a  new  action.  In  this  country,  it 
was  following  the  English  judges,  and  their  errors^  that  led  to 
this.  It  was  their  mode  of  proceeding  ;  I  mean  of  the  English 
judges,  that  if  one  error  assigned,  was  fatal  to  the  action  or  pro- 
ceedings, to  look  no  farther  into  the  record.  By  this  means 
they  consulted  their  own  ease,  and  perhaps  the  interest  of  at- 
tomies,  and  special  pleading,  but,  by  no  means  of  the  parties 
in  the  suit.  I  am  pleased  therefore,  with  this  amendment  of 
the  legislature.  But  there  remains  yet  another  step  to  be 
taken,  and  which,  I  think,  was  originally  in  the  bill,  and  if 
60,  would  seem  to  have  been  struck  out ;  for  it  is  not  in  the 
laxv.  It  is  what  by  way  of  supplement,  may  be  yet  added.  I 
will  endeavour  so  to  explain  myself  that  I  maybe  understood 
by  the  legislative  body  witha  view  to  sucha  supplement. 

"  A  writ  of  error  lies  where  a  party  is  aggrieved  by  any 
error,  in  tJie  foundation^  proceedings  judgment.,  or  execution  of 
a  suit.  It  is  in  the  nature  of  a  commission  to  the  judges  of 
the  same  or  a  superior  court,  by  which  they  are  authorised  to 
examine  the  record  upon  which  ajudgment  was  given;  and 
on  such  examination,  to  affirm  or  reverse  the  same  according  to 
law. 

"  Errors  in  law,  are  common  or  special.  The  common 
errors  are,  that  the  declaration  is  insufficient  in  law,  to 
maintain  the  action.  Special  errors  are,  the  want  of  an  ori- 
ginal writ,  bill,  or  warrant  of  attorney  or  other  matter  appear- 
ing on  the  face  of  the  record,  which  shews  their  judgment 
to  have  been  erroneous. 


Law  Miscellanies.  199 

"  Errors  mfact,  consist  of  matters  not  appearing  on  the  face 
of  the  record,  which  if  true  prove  the  judgment  to  have  been 
erroneous  ;  as  that  the  defendant  in  the  original  action  be- 
ing under  age  appeared  by  attorney.  That  a  femme  plaintiff 
or  defendant  was  under  coverture,  at  the  time  of  commencing 
the  action,  or  that  a  sole  plaintiff  or  defendant  died  before  a 
verdict  or  interlocutory  judgment."  2  Tidd's  practice,  c.  43. 
In  the  foundation  of  the  action^  the  first  error  that  is  as- 
signable, is  the  want  of  jurisdiction  ,•  and  it  is  a  maxim  of 
law  that  consent  cannot g-ive  jurisdiction.  Now  in  the  case  of 
a  justice  of  the  peace  in  this  state,  it  is  a  great  hardship,  that 
if  on  a  writ  of  error,  it  shall  appear  on  the  face  of  the  proceed- 
ing" that  he  has  exceeded  his  jurisdiction  by  a  cent,  even 
though  the  defendant  has  appealed,  and  not  made  a  plea  to 
his  JLuisdiction,  or  made  the  sum  demanded  aground  of  ex- 
ception before  the  justice,  but  waved  all  this,  and  taken  the 
chance  of  a  trial,  he  shall  nevertheless  be  permitted  to  take 
advantage  of  this  on  a  certiorari,  which  is  in  the  nature  of  ti 
writ  of  error.  For  though  it  is  true  that  consent  cannot  give- 
jurisdiction,  where  it  respects  the  nature  of  the  action^yet  it 
is  not  necessary  that  this  be  applied  Avhere  it  respects  only 
the  quantwn  of  the  demand. 

In  like  manner  where  errors  alleged  is  in  the  process  from 
a  court ;  or  where  different  causes  of  action  are  joined  in 
one  writ;  or  where  proper  persons  are  not  made  parties  ;  or 
the  declaration  varies  from  the  writ ;  or  has  counts  that  can- 
not be  joined  ;  or  does  not  go  to  maintain,  or  give  gi-ound 
of  action  ;  or  the  evidence  does  not  agree  with  the  declara-^ 
tion  ;  or  the  verdict  with  the  evidence  ;  or  the  judgment  with 
the  verdict ;  or  the  execution  with  the  judgment ;  in  all  these 
C2LS(is,  if  exception  is  not  taken  to  each  of  these,  and  the  point 
made  in  the  court  below,  why  should  a  party  be  at  liberty  to 
assign  that  for  error  because  appearing  on  the  record,  which 
hud  never  been  moved  or  thought  of,  or  brought  forward  in 
the  court  below,  and  it  can  be  by  implication  only,  that  it  can 
be  supposed  to  have  passed  upon  it,  the  matter  having  pass- 
ed sub  silentio,  and  no  notice  taken  of  it  by  the  party  in  the 
frst  instance.     The  clause  therefore  which  I  would  propose 


200  Law  Miscellanies. 

is  this,  that  where  a  certiorari  is  taken  to  a  justice  of  the 
peace,  or  writ  of  error  to  a  conrt  of  record^  no  exception 
on  the  certiorari  to  the  proceedings  of  the  justice,  shall  be 
taken ;  and  on  the  writ  of  error  to  the  court  of  record,  no 
error  shall  be  assigned  which  had  not  been  made  a  ground 
of  exception  to  the  court  below,  and  on  which  the  court  had 
not  expressly  decided ;  and  at  the  proper  degree  of  the  pro- 
ceedings when  such  exception  ought  to  have  been  taken,  or 
point  made. 


"  The  next  species  of  execution  is  against  the  goods  and  chat* 
"  tels  of  the  defendant ;  and  is  called  a  writ  of  fieri  facias,"  Sec. 
Ill  Bl.  Com.  417. 

THE  law  gives  preference  to  priority ;  prius  in  tempore, 
potior  injure  is  the  maxim.  The  fieri  facias  put  first  into 
the  hands  of  the  officer,  has  the  right  to  a  levy  to  be  first 
made  under  it;  and  the  levy  first  made,  attaches  in  favour 
of  that  creditor.  But  this  may  be  lost  by  delay  ^  either  where 
the  delay  may  be  evidence  of  covering  that  property  coUu- 
sively  with  the  debtor ;  or  where  the  delay  itself  will  amount 
to  2i  fraud  in  law.  It  maybe  a  fraud  on  those  who  give  cre- 
dit on  the  evidence  of  goods  in  a  man's  possession.  This 
would  be  a  fraud  in  fact ;  or  it  may  delay  a  posterior  exe- 
cution ;  and  this  would  amount  to  a  fraud  in  law.  A  man 
must  use  the  preference  the  law  gives  him,  so  as  not  to  de- 
lay or  defeat  the  right  of  another.  This  both  at  common 
law,  and  under  the  statute  of  Elizabeth. 

But  will  a  fraud  in  yac?  be  inferred;  or  a  fraud  in  laxe 
arise  from  the  suffering  the  property  levied  on  to  remain  in 
the  possession  of  the  debtor ;  or  rather  the  officer  not  tak- 
ing it  immediately  into  his  actual,  as  it  already  is  in  his  legal 
possession  ?  That  is  by  such  removal  and  change  of  situation 
as  will  be  exclusive  of  all  evidence  of  a  possession  by  the 
debtor.     Must  the  officer  remain  with  the  property,  and  hold 


Law  Miscellanies.  201 

this  visible  and  actual  possession  of  it  ?    It  is    at  the  risk  of 
the  ofilccr  not  to  do  it ;  but  the  law  will  not  raise   the  impu- 
tation of  fraud,  nor  will  a  jury  be  bound  necessarily  to  infer 
fraud  from  the  bare  leaving  goods  in  the  possession  of  the  debt- 
or^ under  circumstance,  for  a  time  ;  so  far  as  respects  a  credi- 
tor; or  a  plaintiff  in  another  execution,  under  what  circum- 
stances will  the  lapse  of  time  not  be  conclusive?  These  must 
be  left  to  the  court  when  the  question  is  to  them  ;  or  to  the 
court  and  jury  where   the  fact  is    in  issue.     What  time  will 
conclude  ?  That  must  be  left  to  the  same  consideration.     A 
day,  a  month,  a  longer  time  may  be  seen  in  the  English  books 
not  to  conclude.     A  very  short  time  in  other  instances   has 
been  holden  to  warrant  a  conclusion  of  fraud  in   fact,  or  of 
fraud  in  law.  "If  a  creditor  by  fieri  facias  seises  the  goods 
of  the  debtor  and  suffers  them  to  vtxn^m  long  in  the  debtor's 
hands;  and  another  creditor  obtain  a  subsequent  judgment 
and  execution,  it  is  evidence  of  fraud  in  the  first  creditor,  and 
the  goods  in  the  hands  of  the  debtor  remain  liable,"  1  Vez. 
245,  6.  Take  notice,  it  is  the  word  long  that  is  used.     What 
time  shall  be  construed  long  cannot  be   laid*  down  by   a  ge- 
neral rule.  1   Wilson  44,  which  is  sometimes  referred  to  on 
this  head,  gives  a  case  v/here  the  jury  {ound  fraud ;  not  from 
the  time  but  from  the  circumstance,    and  manner  of  the  levy. 
The  time  was  but  four  days  ;  and  the  sheriff  did  not  remain, 
nor  his  bailiffs  in  possession  of  the  goods  ;  but  the  manner 
of  the  taking  in  execution  was,  by  riding  round  the  farm  and 
saying,  "  I  seise  all  this  corn  and  cattle."  7  Mod.  referred  to 
in  Wilson,  says   nothing  of  the  time  ;  and  the  plaintiff  had 
"  got  the  sheriff  to  seise  the  goods  and  would  not  let  him 
proceed  further."  That  was  held  a  fraud,  noihing  appearing 
to  explain  and  rebut  the  imputation  ;  or  rather  circumstances 
appearing  to   support  it;  as  the  paying  taxes  for   the  farm^ 
and  the  goods  in  the  mean  time,    10  Vin.  561.  The  case  1 
Ray.  251.  The  time  was  not  a  day;  but  the  plaintiff  refused 
to  proceed;  and  the  creditor  who  had  another  execution  in 
the  sheriff's  hands  took  the  goods.     For  it  seems,  said  lord 
Holt,  "  that  the  plaintiff  in  the   first  execution  had  a  design 

C  p. 


'202  Law  Miscellanies. 

onli/  to  keep  the  execution  in  his  pocket,  to  protect  the  defendant's 
goods  by  fraud-'*'* 

The  permitting  an  exercise  of  ownership  for  a  day,  or 
less  time  may  be  such  a  badge  of  fraud  as  will  justify  a  court 
or  jury  to  infer  it.  As,  "  in  the  case  of  a  bill  of  sale  of  li- 
quors, and  the  permitting  the  debtor  to  continue  to  retail 
them."  Every  case  of  this  kind  must  stand  upon  its  owii 
bottom;  for  no  general  rule  can  apply,  unless  we  say,  that 
from  the  moment  the  goods  are  seised,  the  officer  must  be  in 
the  actual  possession,  and  proceed  with  all  possible  dispatch, 
to  offer  them  for  sale  and  to  make  sale  of  them.  The  law  of 
England  has  never  been  carried  to  this  extent.  Bui  unrea- 
sonable and  unexplained  delay,  alone,  or  such  circumstances 
as  will  evince  a  design  to  defeat  for  a  time,  or  altogether, 
will  warrant  the  inference  of  fraud, 

I  know  of  no  difference  in  the  case  of  this  state  (Pennsyl- 
vania) from  that  of  England  vfhtre  actual  fraud  can  be  made 
out ;  that  is  an  intention  to  cover  property  from  creditors,  or 
to  delay  their  executions.  On  what  the  law  shall  raise  ah 
implication  of  fraud,  there  may  be  a  difference ;  for  in  the 
application  of  a  rule  of  construction^  we  are  bound  to  look  at 
the  difference  in  the  spirit  and  genius  of  the  system  of  a  dif- 
ferent community  ;  and  the  usage  or  what  is  customary 
goes  to  explain  or  rebut  the  implication.  The  law  of  Penn- 
sylvania has  been,  from  the  earliest  period,  favourable  to  the 
obtaining  credit,  and  is  indulgent  to  debtors. 

The  law  has  had  a  gradation,  a  more  or  less  tenderness 
to  the  debtor,  from  a  consideration  of  the  circumstances  of 
the  people.  By  the  law  of  18CX),  now  obsolete  in  practice, 
for  the  appraisement  of  goods,  a  postponement  of  sale  for 
seven  days  is  provided  ;  and  in  case  the  goods  appraised 
will  not  sell  for  so  much  as  the  same  are  appraised,  and 
valued  to  be  worth  by  the  said  appraisers,  or  any  two  of 
them,  the  creditor  shall  receive  them  for  his  pay. 

Another  law  of  1700,  also  obsolete  in  practice,  provides 
"  not  only  that  in  a  levy  upon  real  estate,  the  chief  plantation, 
or  messuage,  shall  be  taken  in  execution  last,  but  it  shall  not 
be  exposed   before  the  expiration  of  one  whole  year  after 


Law  Miscellanies.  203 

judgment  is  obtained."  These  provisions  in  the  case  of  real 
estate  have  become  obsolete  in  practice,  being  considered  as 
superadded,  or  supplied  by  the  act  of  1705,  taking  away  the 
sale  under  a  fieri  facias  where  real  estate  is  levied  on,  and 
providing  that  a  venditioni  exponas  shall  issue  only  on  the 
return  of  the  fieri  facias,  where  on  an  inquest  taken,  the  land 
levied  will  not  extend  so  as  to  pay  the  debt  in  7  years.  This 
privilege  has  been  construed  by  the  courts  to  extend  to 
what  are  called  improvement  rights.  In  case  of  personal 
property  M'hy  not  pursue  the  spirit  of  the  law  in  the  case  of 
real  estate  ? 

The  early  cultivator  of  the  soil  in  Pennsylvania  could 
not  oftentimes  take  out  a  grub  without  credit  for  an  implement 
of  husbandry  ;  nor  plough  the  ground  without  cattle  ;  nor 
build  a  cabin,  or  live  in  it  without  some  sort  of  furniture, 
and  vessels  of  a  culinary  nature,  or  a  bed,  or  a  blanket ;  and 
execution  levied  upon  these,  and  rigorously  carried  into  ef- 
fect might  leave  him,  in  a  little  time,  as  if  he  had  had  no  cre- 
dit. It  is  on  this  principle  that  the  insolvent  law  provides 
for  the  unfortunate,  the  retaining  family  articles,  and  imple- 
ments of  the  respective  occupation  not  exceeding  the  value 
of  £5  ;  I  mean  a  respect  to  the  circumstances  of  the  husband- 
man as  well  as  the  early  state,  of  trades,  and  other  occupa- 
tions. The  improvement  of  the  country  has  a  good  deal  de- 
pended on  it. 

In  the  case  oj  a  levy  on  personal  property^  it  is  the  zisa^e 
that  has  superseded  the  appraisement  of  goods  and  delivery 
to  the  creditor^  or  of  giving'  some  delay  in  a  proceeding  to  sale. 
Certain  it  is,  that,  it  isiiht  usage  to  let  the  goods  remain  and 
not  to  change  the  actual  possession  instantly  in  all  cases. 
This  with  the  consent  of  the  plaintiff;  or  at  the  discretion  of 
the  officer  himself  taking  security.  A  subsequent  fieri  facias 
put  into  the  hands,  of  the  officer  and  notice  to  him^  or  the 
plaintiff  in  the  first ^  that  if  the  sale  was  not  made,  a  levy 
should  be  made  under  the  subsequent,  might  alter  the  rights 
of  the  parties,  and  lead  to  a  postpone»ient  of  the  prior,  to  the 
subsequent.  But  I  do  not  think  that  of  itself,  it  ought  to  be 
considered  as  implying  fraud. 


204  Law  Miscellanies. 

In  the  state  of  New  York,  8  Johns.  20,  "  the  agent  of  the 
plaintiff  delivered  an  execution  to  the  sheriff,  and  directed 
him  to  levy  it  on  the  property  of  the  defendant,  but  said  to 
the  sheriff  that  he  supposed  he  did  not  wish  to  distress  the  de- 
fendant, and  that  if  the  property  leniaincd  in  the  possession  of 
defendant  after  the  levy,  the  plaintiff  would  not  hold  the  she- 
riff responsible  if  it  was  squandered,  and  that  he  need  not 
take  a  receipt  for  it.  The  sheriff  after  levying  on  the  goods 
of  the  defendant  did  nothing  further  until  after  the  execution 
had  expired,  and  a  second  execution  was  delivered  to  him 
when  he  sold  the  property  on  both  executions.  It  was  held 
that  as  there  were  no  instructions  from  the  plaintiff  tp  delay 
the  execution  after  the  seizure  ;  nor  any  agreement  between 
the  plaintiff  and  defendant  to  let  the  first  execution  sleep  in 
the  sheriff's  hands  ;  nor  any  evidence  of  such  a  delay  as 
would  afford  a  legal  presumption  of  fraud,  the  first  execu- 
tion did  not  lose  its  preference."  This  is  the  marginal  note 
but  it  is  the  language  of  the  court  in  the  opinion  given,  "  that 
if  a  longtime  had  intervened  between  the  one  execution  and 
the  other,  it  might  have  been  ground  for  the  jury  to  have 
inferred  the  consent  of  the  plaintiff  to  the  delay,  and  might 
have  established  the  legal  presumption  of  fraud.  The  court« 
of  the  United  States  sitting  in  Pennsylvania  have  expressed  a 
disposition  to  differ^  and  in  one  case,  4  Dal.  359,  a  regret  at 
differing  from  the  decisions  of  the  state  courts,  in  this 
particular  of  jurispr-udence.  But  had  they  any  right  to  differ 
,  in  laying  down  a  principle^\\ovfe.vG.v  in  the  application  of  onie 
to  a  particular  case  ?  by  Sec.  4.  of  the  act  to  establish  the  ju- 
dicial courts  of  the  United  States,  it  is  provided  that  "  the 
laws  of  the  several  states  except  where  the  constitution,  trea- 
ties or  statutes  of  the  United  Scates  shall  otherwise  require 
or  provide,  shall  be  regarded  as  rules  of  decision  in  trials  at 
common  law  in  cases  where  they  apply."  Will  not  this  cm- 
brace  the  commo?i  law  of  tlie  state ;  and  where  are  they  to  find 
this,  where  it  departs  from  the  common  law  of  England,  but 
in  the  decisions  of  the  state  courts  ? 

Our  decisions  are  evidence  to  these  courts  of  our  unwrit- 
ten law,  and  ought  to  bind,  otlicrwise  the  abridgment  of  their 


Law  Miscellanies.  205 

Jurisdiction  hy  a  constitutional  amendment  will  he  called  for 
more  loudly  than  it  is. 

But  it  will  be  said  that  the  giving  way  to  a  reasonable  time 
7inder  all  circumstance  w'lWhe  a  continual  source  of  difficulty, 
and  give  rise  to  litigation  in  every  particular  case.  It  is  attend- 
ed with  that  difficulty:  but  this  is  not  the  only  case  known 
to  the  law  where  what  is  reasonable  as  to  time,  is  t:*ken  into 
view.  This  from  the  necessity  of  the  case,  and  the  impracti- 
cability of  fixing  a  rule  as  to  time  consistent  with  a  humane 
administratioji  of  the  laxvs. 

In  the  case  of  Berry  v.  Smith,  in  the  circuit  court  of  the 
United  States  before  Judge  Washington,  according  to  a  ma- 
nuscript report  furnished  me,  there  was  a  fieri  facias,  Jan.  1, 
18H  :  on  the  same  day  delivered  to  the  sheriff  12  o'clock, 
with  directions  not  to  levy  it  till  further  instructions.  Same 
day  plaintiflf"'s  council  called  at  the  house  of  the  defendant 
to  inform  him  of  the  issuing  the  execution,  and  to  request 
his  taking  immediate  measures  to  discharge  it.  The  defen- 
dant was  not  at  home.  Next  day  plaintiff's  counsel  called 
again  between  one  and  two,  and  found  defendant  at  dinner. 
He  then  called  him  to  the  door,  and  informed  him  of  the  is- 
suing of  the  fieri  facias  :  said  there  was  no  desire  to  break 
him  up,  or  to  distress  him,  if  it  could  be  avoided  consistently 
with  the  plaintiff's  safety;  that  the  execution  delivered  to 
the  sheriff  would  secure  the  property ;  and  that  the  defendant 
must  immediately  see  the  plaintiff's  agent,  and  make  some 
arrangement  v/ith  him  to  prevent  further  proceedings  under 
the  execution.  3d.  Jan.  plaintiff's  counsel  not  hearing  from 
the  defendant  or  his  agent  directed  the  sheriflf  to  proceed 
to  make  his  levy ;  and  accordingly  the  sheriff  went  to  the 
house  of  the  defendant  and  levied.  But  did  not  then  re- 
move the  goods;  but  left  them  with  the  defendant  according 
to  the  orders  of  the  plaintiff,  endorsed  on  the  writ  "  till  fur- 
ther orders."  This  levy  made  the  3d.  But  on  the  4th,  1 
o'clock,  fieri  facias  in  favour  of  another  creditor,  levy 
and  the  same  goods  seised.  The  defendant  then  being  in 
his  house,  and  no  sheriff  or  officers  being  there,  and  removed 
the  said  goods.  The  defendant  informing  the  marshal  on  the 


206  Law  Miscellanies. 

levying,  that  the  sheriff  had  been  there.  Neither  the  plain- 
tiff nor  his  agent  knew  of  the  issuing  of  the  fieri  facias,  or 
of  the  levy,  or  of  the  removal  until  after  it  was  done." 

This  was  decided  to  raise  the  inference  of  a  fraud  in  law. 
With  much  respect  for  the  abilities  of  that  judge  I  must 
bear  testimony  against  that  decision,  though  his  reasons  are 
sensible  and  manly.  And  I  think  that  even  in  the  English 
courts  it  would  be  deemed  rigorous,  and  winding  up  too 
strictly  the  law.  The  rule  which  I  would  lay  down  is  "  that 
if  the  goods  are  Jorthcoming  at  the  next  court  to  which  the 
writ  is  returnable^  and  money  made  to  answer  the  exigence 
of  the  writ,  the  law  shall  not  raise  a  fraud.  Until  that  time 
the  goods  to  be  subject  to  the  levy.  And  this  I  know  to  be 
the  custom  of  the  country,  and  the  understanding  of  the  prac- 
tice in  Pennsylvania.  Not  until  the  last  day  of  the  term  Is  the 
sheriff  called  upon,  to  bring  the  money  into  court.  The  re- 
turn of  the  Avrit  may  be  called  for,  the  first  day  of  the  term, 
but  the  money  not  expected  to  be  made  until  the  last  day. 
If  the  writ  shall  have  issued  but  a  short  time  before,  though 
a  levy  has  been  made,  it  would  not  amount  to  a  fraud  in 
law  to  postpone  a  sale  for  ten  days  after  the  terms,  or  to 
the  adjourned  court,  which  is  usually  six  weeks  after  the 
terms.     This  is  the  practice  of  the  country. 

But  fraud  in  fact  either  in  the  entering  the  judgment,  the 
taking  out  the  writ  to  cover,  the  putting  into  the  hand  of  the 
officer  with  instructions  to  postpone,  or  in  the  levy,  and  sale 
colourable  or  otherwise,  a  single  particle  of  fraud  would  avoid, 
according  to  the  stage  of  the  transaction  and  let  in,  a  concur- 
rent^ or  subsequent  execution. 

This  indulgence  of  the  courts  to  the  debtor  where  ground 
can  be  laid  for  a  special  application  to  the  contrary,  is  found- 
ed in  humanity,  and  the  necessity  of  paying  some  regard  to 
the  difficulty  of  poor  but  honest  defendants  discharging  debts 
to  avoid  the  ruin  of  the  country.  And  the  salus  populi 
suprema  lex  est.  It  is  establishing  justice  in  mercy.  For 
the  tearing  away  property  by  an  execution  amongst  the  groans 
of  the  distressed,  and  the  tears  of  families,  is  hard  enough 
even  v/ith-all  the  softening  that  can  be  given  it.     And  the 


Law  Miscellanies.  207 

Shylock  that  wftiild  say  to  the  officer,  "  I  stand  upon  my 
bond"  remove  and  sell  instantly,  would  be  considered  in  most 
cases,  an  unfeeling  creditor;  and  on  the  contrary  the  law 
would  not  hastily  raise  an  imputation  of  fraud  to  the  party 
from  a  customary  indulgence,  or  a  reasonable  stay  of  sale. 

I  cannot  but  confidently  be  of  opinion  that  if  this  usage 
of  lenity  and  tenderness  is  superseded  by  ii  rigid  commofi 
faw,  or  beyond  common  construction  of  what  shall  be  a  fraud, 
the  appraisement  law  must  be  revised  by  the  courts,  or  the 
interposition  of  the  legislature  be  called  for  to  moderate  in 
some  way,  which  might  be  less  convenient  to  creditors  than 
the  indulgence  which  the  usage  allows. 

The  rigour  of  an  instant  removal  of  goods  levied  on  un- 
der ah  execution  was  softened  at  an  early  period,  in  our  sis- 
ter colony  of  Virginia.  This  by  an  act  of  assembly  of  1748, 
c.  8,  by  which  it  is  provided  "  that  if  the  owner  of  goods 
taken  in  execution  shall  give  sufficient  security  to  the  sheriff 
to  have  the  same  forthcoming  at  the  time  of  sale,  it  shall  be 
lawful  for  the  sheriff  to  accept  such  security,  and  suffer  the 
goods  to  remain  in  possession,  and  at  the  risk  of  the  debtor 
until  the  time  of  sale." 

This  continues  to  be  the  law.  See  Tucker's  Black.  not« 
page  421.  For  the  law,  under  this  head  as  holden  in  the 
state  of  New  York,  See  9  Johnson,  135,  197,  243  and 
337. 


"The  fourth  species  of  execution  is  by  writ   of  Elegit,"  &c. 
Ill  Bl.  Com.  418. 

By  the  common  law  real  estate  v/as  Subject  to  the  payment 
of  debts,  only,  in  the  case  of  debt  due  to  the  king  !)y  obliga- 
tion or  recognizance :  or  where  lands  had  descended, the  an- 
cestor having  bound  himself  and  his  heir  by  obligation. 
But  by  statute  they  were  made  liable  to  be  taken  in  execu- 
tion sub  modo  and  to  a  certain  extent.  But  in  neither  of 
fhc3c  cases  could  a  sale  be  made,  but  the  land  only  taken  un- 


208  Law  Miscellanies. 

til  from  the  issues  and   profits  the  debt  was  paid.     See  2 
Plow.  439. 

An  inheritance  in  a  foreign  country  (plantation)  was  lia- 
ble to  be  taken  for  payment  of  debts,  and  to  be  esteemed  as 
a  chattel  interest  till  the  debts  are  satisfied.  2  Vent.  358. 

The  laws  of  the  plantations  themselves  where  they  have 
made  provision  must  govern  as  to  the  taking  lands  in  execu- 
tion, or  sale  by  executors. 

Under  the  charter  of  Penn,  certain  laws  were  agreed  upon 
in  England  with  the  adventurers,  amongst  which  was  this, 
that  "  all  lands  and  goods  shall  be  liable  to  pay  debts,  except 
where  there  is  legal  issue ;  and  then  all  the  goods,  and  one 
third  of  the  land  only."  5  Smith's  laws,  416.  In  appendix 
No.  3.  By  an  act  of  the  colony  1687,  this  was  made  a  law. 
By  an  act  of  1684  all  lands  whatsoever,  and  houses  arc 
made  liable  to  execution ;  and  to  be  sold  subject  to  certain 
regulations.  And  by  an  act  1693,  are  made  liable  to  be  sold 
by  the  executor,  or  administrator,  for  the  payment  of  the  dc' 
cedents  debts.  By  an  act  of  1700,  widows  and  administra-. 
tors,  under  the  order  of  the  orphans  court,  were  empowered 
to  sell  lands  for  the  payment  of  debts.  See  appendix.  1  Dall, 
state  laws,  for  all  these  acts  of  assembly  superseded,  or  re- 
pealed. 

Doubts  would  seem  to  have  been  entertained  with  regard 
to  the  proceeding  under  these  laws,  for  what  reason  is  not 
recited  in  the  act  of  1705,  which  is  entitled  an  act  '"''for  the 
better  confirmation^  &c."  But  by  subsequent  laws  and  deci- 
sions, no  doubt  now  remains,  in  Pennsylvania,  But  that  lands 
are  liable  to  be  taken  in  execution  for  the  debts  of  decedents ; 
not,  until  extinguished  by  the  issues  and  prof  ts,  but  to  be  sold 
absolutely.     1  Dall.  481. 

In  the  case  of /zui/z^  debtors  they  must  be  sold  subject  to 
an  inquisition,  whether  the  issues- and  profits  subject  to  all 
reprises,  by  which  is  meant  judgments  and  mortgages,  will 
satisfy  the  debt  in  seven  years.  But  in  the  case  of  deceased 
debtors,  query  whether  they  may  not  be  sold  absolutely, 
without  an  inquisition.  For  if  real  estate  is  to  be  considered 
as  goods  and  chattels  for  the  payment  of  debts  in  the  case  of 


Law  Miscellanies.  209 

a  deceased  person,  it  would  be  an  inconsistency  to  say  that 
such  real  estate  could  not  be  sold  as  goods  and  chattels  are 
without  an  inquisition,  i  am  not  at  present  informed  what 
has  been  the  construction  in  this  particular  from  any  prac- 
tice sanctioned  by  the  courts.  But  it  would  seem  unreason- 
able that  the  debtor  should  be  deprived  of  the  benefit  in 
law  provided  in  his  favour,  giving  him  seven  years  to  dis- 
charge by  the  issues  and  profits ;  and,  that  the  contin- 
gency of  the  decease  of  the  debtor  should  put  his  representU' 
tives  in  a  worse  situation  than  he  had  himself  been;  and 
taking  these  acts  of  assembly  that  are  pari  materia,  it  would 
seem  that  the  representatives  are  entitled  to  the  privilege  of 
extinguishing  the  debt  by  the  issues  and  profits  in  seven 
years.  This  being  the  case,  though  the  lands  are  subject  to 
be  sold  as  goods  and  chattels  for  the  payment  of  debts,  yet 
they  must  be  still  subject  to  an  inquisition. 

But  it  would  seem  from  the  necessity  of  an  inquisition 
being  holden,  that  executors,  without  an  authority  under  the 
will  cannot  sell,  but  must  suffer  an  execution  to  issue  on  judg- 
ments against  the  testator,  or  against  themselves.  Adminis- 
trators cannot  sell  but  under  the  direction  of  the  orphans 
court-  This  authority  is  given  for  the  payment  of  debts,  or 
the  maintenance  of  orphans.  It  would  seenx  that  in  this 
case  the  right  of  the  debtor  must  be  still  saved  to  extend  the 
lands ;  and  therefore  the  analogy  is  not  strict ;  or  can  be  car- 
ried to  the  whole  extent  of  considering  the  real  estate  of  the 
deceased  as  goods  and  chattels.  It  was  to  cure  some  irre- 
gularities of  sales  by  executors  cr  administrators,  not  hav- 
ing authority  by  the  will,  that  the  act  of  1705  would  seem  to 
have  passed.  I  speak  of  administrators  cum  testamento 
annexo,  where  no  authority  was  given  to  sell  for  the  payment 
of  dsbts. 

D  L> 


-10  Law  Miscellanies. 

"  rreehold  lands  which  he  had  at  the  time  of  the  judgment 
''  given."     Ill  BL  Com.  4  18. 

THIS  might  seem  to  imply,  and  has  been  cited  for  that 
purpose,  that  lands  purchased  after  the  judgment^  could  not 
be  taken  in  execution.     But  the  authority  to  which  tl^e  com- 
mentator refers,  2  Institutes,  395.  does  not  restrict  to  this. 
The  words  are,  "  Such  land  as  the  defendant  had,  at  the  time 
of  the  judgment  given,  unless  it  be  conveyed  away,  hy  fraud 
and  covin   to  deceive  his  creditors.''^     This  exception    shews 
v/hat  effect  of  the  judgment  it  is  that  he  is  speaking  of,  (Lord 
Coke)  and  that  it  relates  to  lands  actually  owned  at  the  time 
of  the  judgment,  not  having  been  bona  fide  conveyed  away 
before  the  judgment.    Nor,  has  it  any  reference  to  the  effect 
of  a  judgment  upon  after  purchased  lands.     That  an  execu- 
tion may  be  levied  upon  after  purchased  lands,  not  aliened 
before  execution,  there  can  be  no  doubt.     But  whether  the 
judgment    attaches   on  such  lands  eo  instante  that   they  are 
purchased  ;  or,  whether  they  are  taken  by  virtue  of  the  exe- 
cution, as,  in  the  case  of  goods  and   chattels,  is  a  question. 
In  England  it  would  seem  that  the  judgment  is  considered 
as  attaching,  and  drawing  under  it  the  lands  purchased  after 
the  judgment,  so  that,  though  aliened  before  the  execution,  it 
would  seem  to  be  the  law.   In  Pennsylvania,  it  has  been  other- 
wise.    And  indeed   in    En^    nd,  when  traced  to  the  origin 
of  the  doctrine,  would  seem  to  have  a  very  doubtful  founda- 
tion.    And   so  far  from  extending  such  a  principle  here,  I 
cannot  say  I  would  have  any  objection  to  confine  the  execu- 
tion to  the  licji  of  the  judt,ment,  as  in  the  nature  of  a  general 
mortgage^  so   that  those  lands  only  should  be  considered  as 
pledged,  or  liable  to  be  taken,  which  the  debtor  had  at  the 
time  of  the  judgment.     But  that  these  lands  being  first  ex- 
hausted, towards  payment  of  the  judgment,  a  scire  facias 
might  then  issue  to  the  terre-tenants  of  other  lands,  and  it 
might  be  shewn  that  they  Avere  not  the  lands  of  the  debtor  at 
the  time  of  the  judgment ;  and  have  since  been  purchased  by' 
them,  the  terre-tenants.     This  would  be  in  the  spirit  of  what 
the  legislature  have  already  done,  in  restricting  as  to  limita- 
tion of  time,  the  lien  of  a  judgment. 


Law  Misckllanies.  211 


III  Bkick.  Com.  462. 


A  wager  is  not  considered  as  a  nudum  pactum,  or  con- 
tract without  CGns'ideration  in  the  law  of  England.  The  7«z/- 
?t/a//>ro?72?Ae  is  a  consideration.  Incase  of  a  certain  event 
taking  place,  I  will  pay  you  ;^'lOon  condition  that  if  it  does 
not  take  place  you  will  pay  me  ^10.  It  is  a  specks  of  gamb- 
ling though  it  does  not  come  under  the  usual  denomination 
of  it.  There  may  be  said  to  be  a  quid  pro  quo,  risk  against 
risk.  But  gain  to  one  at  the  expence  of  loss  to  another,  is 
not  in  the  nature  of  a  moral  contract,  where  some  certain  be- 
nefit is  contemplated  on  both  sides.  Alterius  incommode 
suum  augere  commodum,  magis  est  contra  naturam  quam 
mors,  quam  paupertas,  quam  dolor. 

It  is  strange  therefore  that  it  should  still  remain  a  con- 
tract known  to  the  law,  and  that  an  action  is  maintainable  in 
a  court  of  justice,  upon  a  xuagcr.  It  is  still  more  so,  that  it 
should  receive  so  much  the  countenance  of  the  la\v,as  to  be 
the  mode  of  declaring  on  a  feigned  issiie^  where  the  court  of 
chancery  directs  a  matter  of  fact  or  law  to  the  common  law 
courts,  with  a  view  to  an  equity  case  depending,  and  a  de- 
cree to  be  made.  This  mode  of  declaring  has  been  intro- 
duced in  Pennsylvania  ;  and  is  the  form  of  stating  the  case 
where  a  matter  of  fact  or  law  is  sent  to  the  cow2???572  pleas  by 
the  orphans  court,  in  like  tnanner  as  from  the  chancery  in 
England,  whez-e  the  opinion  of  the  common  law  judges  is  to 
be  taken  on  a  question  of  law,  or  where  a  matter  of  fact  is  to 
be  ascertained  by  jury.  In  either  case  this  might  be  easily 
avoided,  by  simply  stating  the  law  point  to  be  decided,  or  the 
matter  of  fact  to  be  tried.  The  reason  given  in  England, 
for  admitting  this  form  of  declaring  is  to  avoid  the  prolixit}' 
and  expence  of  special  pleading.  That  does  not  hold  here, 
where  there  is  neither  prolixity  nor  expence  arising  from  the 
pleadings  ,*  all  being  put  in  brief.  This  needs  no  act  of  as- 
sembly, but  simply  that  the  court  in  the  last  resort^  gi^'ing 
it  to  be  understood  that  such  form  of  declaring  maybe  dis- 
pensed with,  and  a  statement  according  to  the  truth  of  the 
case  admitted.     For  a  court  in   the   last  resort,  such  as  we 


2ie  Law  Miscellanies. 

have  in  Pennsylvania,  the  supreme  court,  has  a  greater  lati- 
tude, and  is  less  embarassed  in  altering  a  matter  of  practice ; 
or  a  rule  of  law  as  to  form  of  action,  than  cither  the  court  of 
common  pleas,  king's  bench,  or  exchequer  in  England.  For  a 
writ  of  error  lies  from  the  king's  bench  to  the  common  pleas, 
and  from  the  law  side  of  the  exchequer,  a  writ  of  error  lies 
into  the  court  of  exchequer  chamber  before  the  lord  chancel- 
lor, lord  treasurer,  and  the  judges  of  the  court  of  king's  bench, 
and  common  pleas,  and  from  thence  it  lies  to  the  house 
of  peers.  This  et  sequentia,  see  3  Black.  410.  It  must  be 
a  matter  of  less  difficulty  therefore  here  to  alter,  or  change 
rules,  than  in  that  country  from  the  constitution  of  their  courts, 
and  the  expence  attending  appeals.  For  this  reason  it  ought 
to  appear  absurd  in  our  supreme  court,  to  hear  the  judges  de- 
claring as  in  the  common  pleas,  1  Taunton,  542.  "  The  cases 
have  decided,"  says  Mansfield,  "  Cfor  what  reason^  I  cannot 
perceive  J  that  a  count  for  goods  sold  and  delivered,  is  not  an 
action  upon  a  contract."  And  Chambre,  justice,  "  I  am  very 
sorry  we  are  bound  to  conform  to  such  a  rule^hxxt  the  cases  are 
all  so." 

It  is  on  this  principle  that  so  far  as  my  voice  could  go, 
I  have  declared  more  than  once  against  declaring  on  a  feign- 
ed issue  in  such  a  way,  not  only  because  I  think  that  it  may 
be  better  done  or  at  least  more  conformably  to  common  un- 
derstanding, to  state  the  point  of  law  on  which  an  opinion  is 
required,  or  a  matter,  the  issue  in  fact  of  which  is  to  be  de- 
termined by  a  jury  ',  but  for  this  reason  also  that  it  will  avoid 
the  giving  countenance  to  the  priiiciple  of  a  wager,  by  adopt- 
ing the  form  in  a  judicial  proceeding. 

A  wager,  however,  is  restrained  by  the  common  law  to  what 
\s  lawful.  It  must  be  unlawful  for  a  person  to  wager  that  he 
will  transg-ress  a  penal  statute.  This  comes  under  the  head 
of  malum  prohibitum  ;  but  still  more  it  must  be  unlawful  to 
Avager  that  he  will  commit  a  battery,  for  this  is  malum  in  se, 
and  a  breach  of  the  peace,  contra  bonos  mores,  or  what  is 
against  good  morals  must  be  unlawful,  as  the  ground  of  a 
wager  that  the  v/agerer  will  strip  himself,  and  shew  himself 
naked  from  a  balcony,  or  other  place. 


Law  Miscellanies.  213 

But  the  common  law  will  still  farther  restrict  the  subject 
of  a  wager.  What  must  affect  the  reputation  or  the  feelings 
of  a  third  person^  is  unlawful.  What  will  lead  to  an  indecent 
investigation,  will  not  be  sustained  by  a  court,  as  with  regard 
to  the  sex  of  an  individual.  On  a  wager  against  public  poli- 
cy, also,  no  action  can  be  maintained. 

There  is  a  species  of  wagering  which,  I  take  it,  the  com- 
mon law  would  hold  unlawful,  so  that  an  action  could  not  be 
maintained ;  such  as  upon  a  man's  own  speed  or  strength,  or 
that  of  others  ;  or  such  uncommon  exertions,  as  must  be  un- 
profitable or  pernicious.  Even  in  the  case  of  animals,  races 
against  time,  or  carrying  or  drawing  against  each  other,  or 
against  weight,  is  a  species  of  cruelty,  and  cannot  but  be  con- 
sidered wantonness,  and  an  abuse  of  useful  powers  ;  so  that 
in  these  cases  also,  wagering  ought  to  be  held  unlawful,  and 
no  action  to  recover  ought  to  lie. 

Wagering  has  been  excluded  from  the  law  of  insurance 
by  statute  in  England.  "  The  practice  of  insuring  ideal 
risks  under  the  names  of  interest  or  no  interest,  nor  with- 
out farther  proof  of  interest  than  the  policy,  or  without  be- 
nefit of  salvage  to  the  underwriters,  was  increasing  to  an 
alarming  degree,  and  by  such  rapid  strides  as  to  threaten  the 
speedy  annihilation  of  that  lucrative  and  most  beneficial  branch 
of  trade.  All  these  various  kinds  of  insurance  just  enume- 
rated, (and  many  others,  which  the  ingenuity  of  bad  men 
found  no  difficulty  in  devising)  having  no  reference  whatever 
to  actual  trade  or  commerce,  were  very  justly  considered  as 
mere  gaining  and  wager-policies  :  and  therefore  the  legisla- 
ture thought  it  necessary  to  give  them  an  effectual  check, 
and,  by  positive  rules,  to  fix  and  ascertain  what  property  or 
interest  a  merchant  should  be  permitted  to  insure."  Park. 
348. 

All  wagering  on  the  event  of  an  election  ought  to  be  con- 
sidered as  unlawful  in  a  republican  government ;  where  it  is 
essential  to  the  exercise  of  the  privilege  and  the  choice  of  re- 
presentatives, that  the  voter  be  confined  to  considerations  of 
policy  in  the  selection,  and  be  swayed  by  no  motive  of  pecu- 
niary profit   or  advantage.     It   leads    to  undue  exertions 


214  IaAw  Miscellanies. 

also,  where  a  stake  is  depending  further  than  the  public  good, 
and  is  introductive  of  unusual  heat,  and  sometimes  breaches  of 
the  peace.  No  action  ought  to  lie  in  these  cases.  Where  there 
is  a  deposit  in  the  hand  of  a  stake-holder,  it  ought  not  to  be 
recovered  of  him  by  the  party  succeeding.  But  query,  whe- 
ther it  would  not  be  for  the  public  good,  that  by  an  act  of  the 
legislature  all  such  wagering  should  be  swept  away  by  making 
it  a  misdemeanor,  and  an  indictable  oifence  to  bet,  and  deposit, 
or  take  the  mutual  promise  of  parties  to  such  contract.  The 
freedom  of  unbiassed  suffrage  is  of  great  moment,  and  great 
sums  at  risk  by  monied  men  on  the  event  of  an  election, 
cannot  but  do  mischief.  The  wealthy  bet  because  they  can 
afford  to  lose,  and  the  bulk  arc  led  to  place  confidence  in 
the  stake,  as  a  pledge  that  in  their  judgment  such  a  candidate 
will  be  successful.  It  is  an  art  of  canvassing  that  prevails 
much,  and  misl«;adsthe  weaker  judgment. 


Extract    of  a  letter  from  Joseph   Reed,  recorder  of  the   city  of 
PJiiladelphia. 

PHILADELPHIA,  Oct.  5,  1813. 
"  I  HAVE  been  much  pleased  with  the  perusal  of  a  few 
sheets  of  your  intended  publication,  by  Byrne.  As  a  didac- 
tic work,  I  tltink  it  well  calculated  for  the  use  of  the  student, 
and  will,  I  hope,  in  time,  promote  a  complete  revision  of  the 
code  of  Pennsylvania  law.  On  a  perusal  of  the  sheets,  I  am 
inclined  to  think  there  are  some  few  errors  in  point  of  fact, 
which  I  beg  leave  candidly  and  respectfully  to  suggest  to  you 
— In  page  1 9  of  the  introduction,  you  have  observed,  that  the 
quakers  do  not  admit  a  practitioner  of  the  law  to  be  in  full 
communion. — This,  I  am  informed,  is  not  the  case,  there 
arc  several  instances  in  this  city  of  gentlemen  of  the  profes- 
sion being  in  full  communion  with  the  friends.  Mr.  John  Hal- 
lowell,  I  know  is,  and  values  his  privilege  as  a  member  of 
the  meeting,  very  highly. — Before  the  western  insurrection, 
I  might  have    named  several  others,  viz.  Messrs.    Rawle, 


Law  Miscellanies.  215 

Morgan,  &c. — Mr.  John  Tod,  the  former  husband  of  Mrs. 
Madison,  remained  in  full  communion  with  the  friends,  until 
his  death  in  1793. — In  page  38  of  the  Law  Miscellanies,  you 
have  stated  that  a  legislative  provision  is  necessary  "  to  en- 
"  able  the  children  of  a  devisee  to  take  among  themselves 
"  what  the  devisee  himself  would  have  taken." — This  was 
done  by  the  act  of  the  19th  March,  1810,  which  has  probably 
escaped  your  notice,  or  perhaps  your  observation  was  made 
before  the  passing  of  the  law. 

"  I  have  thus,  sir,  taken  the  liberty  of  stating  what 
has  occurred  to  me  on  a  perusal  of  a  part  of  5'our  work ;  if 
I  am  right,  I  know  you  will  thank  me  for  the  information,  and 
if  I  am  wrong,  you  will  I  am  sure  appreciate  my  motive,  and 
excuse  the  liberty  I  have  taken." 

The  title  of  this  publication,  a  miscellany,  will  naturally 
admit,  or  rather  call  for  a  greater  liberty  of  insertion  than 
otherwise  could  be  tolerated  ;  but,  independent  of  this,  there 
would  be  a  perfect  propriety  in  admitting  any  thing  that  would 
serve  to  correct  what  had  been  said  or  hinted  at.  I  there- 
fore did  not  think  I  could  do  better  than  give  the  extract  from 
the  preceding.  I  shall  be  disposed  to  do  the  same  in  any 
case  where  I  may  be  honoured  with  the  notice  of  what  has 
been  written. 

As  to  the  act,  19th  March,  1810,  I  believe  v/hat  I  had 
written  was  before  it  passed ;  and  I  overlooked  It  in  correct- 
ing the  original  note.  But  this  act  of  19th  March,  1810,  does 
not  come  up  to  all  that  I  had  in  view  ;  and  was  in  my  mind 
in  the  observation  made  upon  a  reference  to  1  Bin.  546. 
That  was  the  case  of  the  representatives  of  a  brother  and  sis- 
ter devisees,  which  is  not  provided  for  even  yet  under  that  act, 
as  it  would  not  seem  to  extend  to  the  case  of  ccUatcral  rela- 
tions^ but  is  confined  to  lineal  descendants^  and  respects  the 
dying  before  the  testator;  and  does  not  provide  for  the  case 


2^16  Law  Miscellakies. 

of  an  executory  devise  at  a  future  period,  and  after  the  death 
of  the  testator.  The  feudal  principle  of  taking  per  capita^ 
was  in  the  way  in  the  case  of  the  lessee  of  Smith  v.  Folwell, 
1  Bin.  546. 

It  would  seem  to  me  that  the  legislature  are  but  little  in 
the  way  of  reading  our  decisions  ;  otherwise  their  attention 
could  not  have  been  but  drawn  to  this  subject  long  before  this 
time. 


NOTES  ON 


BLACKSTONE'S  COMMENTARIES. 


I;0IXTIXG  OVT  VARIATIONS  IN  THE  LAW  OF  PENNSYLVANIA, 
FROM  THE  C0M:M0N  AND  STATUTE  LAW  OF  ENGLAND, 
WITH    OTHER     MATTERS    OF    A    GENERAL    NATURE. 


"  But  by  Stat.  22  Car.  II.  c.  7.  no  person  is  allojved  lo  work 
•n  the  Lord's  day,"  Sec.     IV  Bl.  Com.  63. 

"  To  Tjork^''  is  not  an  expression  in  the  statute  ;  though  it 
is  in  the  8th  commandment  given  to  Moses;  '"'' shah  not  do 
any  work.''''  Exod.  c.  20,  sec.  10.  The  words  of  the  sta- 
tute Chas.  II.  c.  7.  are  that,  "  no  tradesman,  artificer,  work- 
man, or  labourer,  or  other  person  whatsoever,  shall  do  or  ex- 
ercise any  xvorldhj  labour,  business  or  work  of  their  ordinary 
calling"  on  the  Lord's  day."  It  has  been  holden  that  it  is  not 
unlawful,  under  this  statute,  to  bargain  for  the  sale  of  a 
horse,  the  vendor  not  being  a  horse-jockey ;  and  so,  not  in 
the  way  of  his  ordinary  calling-.  1  Taunt.  1 30.  The  punishing 
the  offcndor  in  Connecticut  for  letting  his  beer  work,  was  car- 
rying the  matter  to  the  other  extreme. 

Our  act  of  assembly  of  1705,  copied  in  part  from  that  of 
Cha.  2d.  c.  7.  judiciously  omits  the  words  ordinary  calling-^ 
and  steers  clear  of  this  difficulty,  or  rather  absurdity,  in  dis- 
tinguishing work  done  in  the  v/ay  of  a  man's  ordinary  calling-^ 
from  that  of  work  done  in  any  other  way  ;  and  in  the  act  of 
assemlily  22d  Ap.  1794-,  which  is  the  last  act,  and  supplies 
all  ar.tceedent,  as  to  this  particular,  the  words  are,  if  any  per- 

£    E 


218  Law  Miscellanies. 

son  do,  Src.  such  persons  so  ojff ending  shall,  &c.  By  these  act5 
all  •wordly  labour  is  prohibited,  whether  in  the  way  of  a  man's 
ordinary  calling  or  otherwise ;  and  which,  doubtless,  also 
was  the  intent  of  the  statute,  Cha.  II.  c.  7 ;  hut^  as  penal  law» 
are  to  be  construed  strictly^  the  judges  have  thought  them- 
selves warranted  in  taking  the  distinction,  or  bound  to  take 
jt.  For  it  is  under  the  statute  alone  that  it  could  be  cogniZ' 
able  not  being  a  misdemeancr  at  common  law;  though  as  to 
this,  there  has  been  some  contrariety  of  opinion.  It  depends 
upon  the  question  whether  the  commandment  given  to  Mo- 
ses is  in  force  under  the  christiaji  dispensation.  It  cannot  be 
denied  but  that  the  reason  of  the  institution  goes  some  length 
in  extending  it  to  all  times,  and  under  all  dispensations  ;  "  In 
six  days  the  Lord  made  heaven  and  earth,  &c.  and  rested  the 
seventh  j  wherefore  the  Lord  blessed  the  Sabbath  day  and 
hallowed  it."*  But  the  author  of  our  religion,  would  seem 
to  have  claimed  the  ^^nxhority  oi dispensing  yf'ixh  the  keeping 
it ;  at  least,  with  the  Jewish  strictness. 

"  The  son  of  man  is  lord  also  of  the  sabbath."  Mark,  2. 
sec.  28.  Certain  it  is  that  the  Jewish  Sabbath  does  not  appear 
to  have  been  kept,  or  at  all  attended  to  under  his  immediate 
disciples  ;  but  whatever  respect  was  paid  in  the  observance  of 
any  day,  it  was  to  tlie  Jirst  day  of  the  weeky  the  hebdom  of 
the  resurrection,  and  so  called  the  Lord^s  day.  On  this  day  the 
brethren  met  to  "break  bread,"  as  appears  from  Acts  20.  sec. 
7  ;  "  upon  the  first  day  of  the  week  when  the  disciples  came  to 
break  bread,"  &c.  and  this  day  appears  to  have  been  regard- 
ed, and  no  other  day,  from  that  time  forward,  whether  for 
the  purpose  of  meetings  and  confirming  each  other  in  the 
faith,  making  charitable  collections  for  the  poor  brethren  ; 
or  settling  matters  of  order  and  discipline  in  the  church;  or 
for  the  purpose  of  joining  in  religious  devotion. 

In  the  case  in  Taunton,  130,  the  counsel  on  one  side  ar- 
giic  that,  "  no  canon,  no  opinion  is  to  be  found  in  any  writer 
upon  Ecclesiastical  law,  treating  bargains  made  on  a  Sunday  aS 
illegal.  The  Jewish  law  prohibited  them,  but  several  of  the 
councils  have  expressly  declared  that  christians  shall  not 
*Exod.  20.  sec.  11. 


Law  Miscellanies.  219 

judaise."  On  the  other  side  it  was  contended  "that  a  sale 
on  Sunday  was  illegal  at  common  laxv ;  that  in  Christianity 
as  well  as  Judaism,  the  4th  commandment  is  retained ;  and 
that  which  is  an  offence  against  it,  when  committed  by  a  Jew^ 
is  equally  such  when  committed  by  a  Christian;  that  no  case 
had  been  cited  where  a  contract  made  on  a  Sunday  has  been 
enforced  by  law." 

The  court  take  notice  that  it  is  said  by  Lord  Coke,  that 
the  Christian  Religion  is  part  of  the  common  law  ;  2  Inst.  220. 
Where  he  cites  a  law  of  King  Athelstan,  die  autem  domini- 
co  nemo  mercaturam  facito;  id  si  quis  egerlt,  et  ipsa  merce 
et  trigenta  praeterea  solidis  mulctatur  ',  and  note  that  7io  mer- 
chandise should  be  on  the  Lord's  day.  But  it  does  not  ap- 
pear, say  the  court,  that  the  common  law  ever  considered 
those  contracts  void  which  were  made  on  a  Sunday. 

That  the  contract  should  not  be  void,  and  yet  the  act  a 
misdemeanor  as  contra  bonos  mores  would  seem  to  be  an 
inconsistency.  But  the  legislature  in  England,  as  well  as  here 
having  legislated  on  the  subject,  it  can  only  be  according  to 
the  prohibitions  that  it  is  a  misdemeanor  or  the  act  void. 

The  Stat.  Cha.  2.  c.  7.  goes  farther  than  merely  prohibiting 
secular  work  and  employment,  and  enjoins  what  is  to  be 
done  on  that  day  ;  "  Every  person  or  persons,  shall  on  the 
Lord's  day,  apply  themselves  to  the  observance  of  the  same, 
by  exercising  themselves  thereon  in  the  duties  of  piety 
and  true  religion  publicly  and  privateh'."  But  by  our  act 
22  April,  '94,  it  is  left  to  the  conscience  of  the  party,  or  the 
censure  of  the  religious  society  to  which  they  belong,  if  they 
belong  to  any,  as  to  the  duties  in  which  they  may  employ  them- 
selves. It  restrains  only  the  doing  worldly  labour  on  that 
day.  The  compact  of  our  political  association  embracing 
jews,  or  seventh  day  baptists,  or  others  who  do  not  use  that 
day  for  the  purposes  of  devotion,  must  be  comprehended, 
so  far  as  respects  the  exercise  of  public  employment  of  a 
worldly  nature. 

It  may  be  observed  that  whether  of  divine  or  civil  institu- 
tion merely,  the  observance  of  one  day  in  seven,  is  a  great 
political  good ;  and  it  cannot  interfere  with  the  rights  of 


220  Law  Miscellanies. 

conscience  in  jew  or  others,  who  are  left  at  liberty  to  observe 
other  days  of  their  own  chusing.  If  it  is  even  at  the  expence 
of  being  thrown  out  of  a  portion  of  time  for  their  occupa- 
tions, in  addition  to  that  out  of  which  they  throw  themselves^, 
private  convenience  must  i^ivervay  to  general  ^ood. 


IV  Bl.  Com.  136. 

THE  Commonwealth  v.  Dennis  and  others.  At  the  trial 
of  this  indictment,  the  testimony  for  the  commonwealth 
being  closed,  it  was  moved  on  behalf  of  one  of  the  defen- 
dants, that  the  jury  pass  upon  him  (that  defendant)  in  the 
first  instance,  nothing  having  been  proved  against  him.  But 
the  court  would  not  say  that  there  was  no  evidence  ;  on  the 
contrary,  there  Avas  evidence  upon  which  it  was  not  impos- 
sible but  that  the  jury  might  convict.  But  why  not  let  the 
jury  pass  upon  him  that  in  case  even  of  conviction  ;  the  of- 
ience  charged,  not  being  of  such  a  nature  as  to  exclude  his 
testimony  even  on  conviction,  he  m\ght  be  sworn  a  witness 
for  the  other  two  defendants.  rhey  had  an  interest  in  his 
testimony^  and  it  had  deprived  them  of  it  in  joining  them  in 
the  same  indictment.  The  inclination  of  my  mind,  at  first, 
on  general  principles  of  justice,  was  to  let  the  jury  pass 
upon  this  defendant,  against  whom  the  least  was  proved, 
and  in  whose  case  some  doubt  of  his  acting  might  be  thought 
to  exist.  But  more  advised,  I  thought  proper  to  refuse  the 
motion,  and  directed  the  verdict  to  be  taken  against  the 
_  whole. 

I  saw  a  difficulty  in  the  particular  case.  For  the  indict- 
ment being  for  a  riot,  if  the  first  was  convicted  it  would  be 
of  a  riot;  and  yet  by  his  testimony,  I  mean  the  convicted, 
the  remaining  two  might  be  acquitted  of  the  riot,  by  his  tes- 
timony, an  assault  and  battery  pnhj  proved,  which  would  in- 
volve an  inconsistency  upon  the  record. 

'    The  same  in   the  case  of  conspiracy,  v/here  two  being 
necessary  to  constitute  the  offence,  the  conviction  of  one  and 


Law  Miscfllanies.  221 

acquittal  of  the  other,  on  the  testimony  of  the  convicted, 
would  involve  the  same  inconsistency  :  and  the  private  mis- 
chief of  the  loss  of  testimony  to  one  must  give  way  to  the 
general  inconvenience  of  admitting  it  in  such  castas. 

But  in  the  case  of  other  misdemeanors  ;  an  assault  and 
battery,  for  instance,  this  inconvenience  would  not  exist ; 
and  even  though  some  evidence  is  given  against  on&  q{ several 
defendants^  yet  why  not  take  a  verdi(ct  in  the  case  of  one  to 
let  in  his  testimony  for  the  others  ?  But  it  does  not  seem  to 
be  the  policy  of  the  law  to  carry  the  matter  far.  And  it  is 
only  in  a  case  where  no  evidence  is  given,  that  the  defendant 
is  considered  as  having  a  claim  of  right  to  have  a  verdict 
taken  separately  in  his  case. 

The  plaintiiT  cannot  hinder  letting  judgment  go  by  de- 
fault against  one,  and  then  hebecomes  a  witness  for  the  co-de- 
fendants, even  in  a  case  where  there  is  evidence.  But  this 
is  his  act.  But  he  cannot  move  to  have  his  name 
struck  out  of  the  declaration,  there  being  no  evidence  against 
one,  for  this  would  be  putting  it  to  the  court,  to  say  whether 
there  is  evidence.  But  he  can  move  to  let  the  jury  pass 
upon  his  case  separately. 

The  present  Lord  EUenborough  in  a  late  case  which  I 
dj  not  cite,  but  which  I  have  looked  at  to  inform  myself  as 
to  the  reason  of  others  ;  for  I  do  not  understand  the  late 
act  of  Assembly  as  precluding  the  looking  at  English  deci- 
sions either  by  counsel  or  by  court,  but  the  citing  them  only. 
And  in  a  late  case  on  an  indictment  against  several  defendants 
for  a  misdemeanor  in  obstructing  a  proceeding  under  a  penal 
law  ;  two  pleaded  guilty,  and  the  other  not  guilty,  and  offer- 
ed those  before  him,  as  witnesses,  there  being  an  end  of  the 
matter  as  to  them,  agreeable  to  the  case  in  1  Strange  6S3. 
But  the  reason  given  in  a  modern  case,  for  rejecting  the 
evidence  appears  to  be  fallacious.  "There  is,"  says  he,  "a 
community  of  guilt.  They  are  all  engaged  in  an  unlawful 
"proceeding.  The  offence  is  the  offence  of  all ;  not  the  act  of 
the  individual  only."  Is  not  this  assuming  the  fact  that  the 
others  in  whose  case  this  co-defendant  was  about  to  give  evi- 
dence, tvere  guilty.     It  might  be  that  his  evidence,  as  it  was 


ti22  Law  Miscellanies. 

the  object  of  offering  it,  would  go  to  shew  that  these  mea, 
notwithstanding  what  had  appeared,  were  innocent. 

The  counsel  admit  in  the  argument  in  this  case,  that  where 
no  evidence  is  againt  the  co-defendant,  yet  the  jury  must 
pass  upon  him  and  acquit  before  he  can  be  heard. 

The  court  adopts  this  language  that  in  that  case  he  might 
be  sworn. 

The  being  liable  for  costs  is  spoken  of;  and  these  out  of 
the  way,  by  being  acquitted,  or  by  being  fined,  the  compe- 
tency is  admitted. 

A  defendant  in  an  information  against  whom  no  evidence 
given,  is  admissible  for  the  others.  2  Bar.  582.  But,  I  take 
it,  a  verdict  must  be  taken  before  he  can  be  heard. 

In  misdemeanors,  parties  indicted  separately  from  the 
parties  on  trial,  or  not  indicted,  though  concerned  in  the 
transaction,  are  competent  witnesses;  and  the  same  rule 
holds  good  in  many  species  of  civil  actions,  when  the  witness 
is  not  made  a  defendant. 

As  if  A.  and  B.  be  indicted  for  assaulting  the  same  per- 
sons, and  tried  separately,  they  are  good  witnesses  for  each 
other.     1  M'Nally,  204. 

And  so  where  A.  B.  and  C.  are  tried  in  three  several 
actions  on  the  statute,  for  a  supposed  perjury,  in  their  evi- 
dence concerning  the  same  thing,  they  may  be  good  witnesses 
in  such  action.     2  Hawk.  pi.  cr.  c.  46. 

It  may  seem  unreasonable  that  a  plaintiff  or  prosecutor, 
«hould  have  it  in  his  power,  by  joining  in  an  action  or  in- 
dictment to  deprive  a  defendant  of  testimony  that  he  would 
otherwise  have  had.  But  there  being  no  evidence,  in  the 
opinion  of  the  court,  will  restrain  this  arbitrary  joining,  and 
making  a  defendant,  by  giving  leave  to  strike  the  name  out 
of  the  declaration,  or  by  directing  a  verdict  to  be  taken  for 
him.  But  if  in  all  cases  defendants  in  misdemeanors  joined, 
eould  be  witnesses  for  each  other,  it  would  tend  to  defeat 
every  action,  and  indictment. 

It  would  seem  to  be  giving  an  undue  advantage  and  the 
policy  of  the  law  Vvould  not  seem  to  have  come  so  far. 


Law  Miscellanies.  825 

Since  making  the  above  note  with  a  view  to  report  to  the 
court,  notice  having  been  given  by  the  counsel  of  an  intention 
to  move  in  bank,  I  have  met  with  something  to  the  point, 
and  supporting  some  of  the  ideas  I  have  thrown  out.  This 
in  1 3  East,  beginning  41 1,  in  the  notes  to  the  case  in  that  page, 
referring  to  several  cases  of  the  ante-revolutionary  period. 
The  King  v.  Nichols,  17  G.  II.  1742.  The  defendant  was 
indicted  for  a  conspiracy  at  Hick's  Hall.  The  jury  found 
him  guilty  of  a  conspiracy  with  one  Bygrave.  They  like- 
wise found  that  Bygrave  died  before  this  indictment  found ; 
and  therefore  pray  the  advice  of  the  court  whether  the  de- 
fendants were  guilty  as  laid  in  the  indictnient?  By  Lee  c. 
justice.  "  It  is  certain  that  in  all  conspiracies,  there  must  be 
two^  at  least,  or  no  indictment  will  lie,  and  therefore  if  one  be 
acquitted,  the  other  cannot  be  guilty."  But  that  case  differs  ; 
because  one  being  acquitted,  the  conviction  of  his  companion 
on  the  same  record  must  be  directly  repugnant  and  contra- 
dictory to  the  other.  But  here  no  such  contradiction,  where 
the  one  is  dead,  any  more  than  where  one  of  the  defendants  re- 
fuses to  come  in  plead,  yet  judgment  may  be  given  against 
the  other. 

Rex  v»  Kinnersly  cited  by  Eyre,  c.  j.  in  Kinnersly's  case, 
indictment  for  that  A.  and  B.  cum  multis  aliis,  illicit©,  rio- 
tore,  routose  assemblaverunt,  &c.  A.  acquitted  ;  yet  B.  con- 
victed on  the  score  of  the  cum  multis  aliis  being,  which 
saved  the  appearance  of  contradiction  on  the  record. 

In  the  case  of  the  Commonwealth  t;.  M'Clean  and  another, 
the  jury  having  first  passed  upon  M'Clean,  and  he  being- 
acquitted  on  the  plea  of  insanity  set  up  for  him,  it  occurred 
as  a  question,  whether  the  other  defendant,  it  being  a  coU' 
spiracy  that  was  charged,  must  not  be  discharged  from  the 
indictment,  it  requiring  Hvo^  and  it  being  alleged  that  A. 
could  not  be  guilty  of  a  conspiracy  with  B.  who  had  no  mind. 
It  seemed  to  me  at  the  time  that  he  might  hav^e  conspired  in 
the  act,  though  it  could  not  be  said  in  the  will  of  the  other ; 
but  of  this  I  had  doubts,  and  had  a  conviction  taken  place 
would  have  expected  a  motion  in  arrest  of  judgment ;  but 
the  other  wa*  acquitted. 


224  Law  Miscellanies. 

This  all  bears  upon  the  difficulty  I  have  suggested,  and 
which  governed  me  in  the  case  of  the  Comniomvealth  v. 
Deuris  and  others,  the  impossii  ility  of  admitting  the  defen- 
dants to  be  witnesses  for  each  oiher  without  involving  the 
inconsistency  of  one  being  found  guilty  of  a  riot,  and  the 
other  acquitted,  there  being  no  cum  multis  aliis  laid  in  the 
indictment. 


IT  is  provided  by  the  constitution  of  Pennsylvania,  that 
"  in  prosecutions  for  the  publications  of  papers,  investigat- 
ing the  official  conduct  of  officers,  or  men  in  a  public  capa- 
city, or,  where  the  matter  published  is  proper  for  public  in- 
formation, the  truth  thereof  may  be  given  in  evidence." 
There  is  in  this  sentence,  after  the  diversative  conjunction  or, 
what  the  grammarians  call  an  ellipsis,  a  greek  word  which 
signifies  deficiency,  or  the  want  of  that  which  must  be  sup- 
plied in  the  mind,  to  make  the  sentence  complete.  In  com- 
pleting this  sentence  in  our  minds,  we  must  go  back,  and 
take  up  what  part  of  the  sentence  preceding  the  conjunction, 
is  necessary  to  connect  w^hat  follows  the  conjunction.  In 
doing  which  we  shall  read  the  whole  thus,  "  In  prosecutions 
for  the  publications  of  papers  investigating  the  official  con- 
duct of  officers,  or  men  in  a  public  capacity;  or*in  prose- 
cutions for  the  publication  of  papers  where  the  matter  pub- 
lished is  proper  for  public  information,  the  truth  may  be  giv- 
en in  evidence." 

This  may  seem  to  carry  the  provision  farther  than  the 
investig-atio7i  of  official  cotiduct ;  for  it  may  be  said,  that  a 
matter  may  be  proper  for  public  information^  though  not  re- 
lating to  official  conduct.  But  on  that  construction,  there 
would  have  been  no  necessity  for  the  specification  oi  official 
conduct ;  for  it  would  take  in  ail  conduct^  where  the  matter 
published  was  proper  for  public  information;  and,  therefore 
in  applying  the  second  branch  of  the  sentence,  we  are  warrant- 
ed in  applying  it  to  other  than  the  conduct  of  officers,  or  men 


Law  Miscellanies.  225 

in  a  public  capacity ;  and  to  consider  the  words,  "  the  pub- 
lication of  papers,  where  the  matter  published  may  be  pro- 
per for  public  information,"  as  introducing  a  provision  in 
the  case  of  those  who  rre  7iot  oficers^  or  men  in  a  public  ca- 
pacity. But  the  restriction  to  offcial  co7iduct  in  the  first 
branch  of  the  sentence,  must,  from  analogy,  restrain  the  pro- 
vision, in  the  second  branch,  to  the  official  ^ualiJ/cotio7is  of 
of  such  as  are  candidates  for  offices.  To  extend  it  farther, 
would  carry  it  beyond  all  rule  that  could  be  laid  down,  as 
to  what  should  be  a  matter  proper  for  public  information. 
But  as  to  what  is  matter  proper  for  public  information,  the 
officer  who  prosecutes,  must  judge,  in  the  first  instance  ; 
and  it  would  seem  reasonable,  and  in  the  spirit  of  the  privi- 
lege of  giving"  the  truth  in  evidence^  that  the  accused  should 
have  notice  from  the  indictment  itself,  that  it  is  such  a  case, 
as  the  prosecutor  for  the  state,  considers  to  be  within  the 
privilege  to  give  the  truth  in  evidence.  This  reason  will  a 
fortiore  apply,  if  matter  proper  for  public  information  is  car- 
ried beyond  the  official  conduct  of  officers,  or  the  official 
qualifications  of  candidates  for  office-  But  ever  restraining 
this  as  we  do,  there  would  be  great  advantage  to  the  accused, 
in  having  the  information  from  the  indictment  itself,  that  the 
truth  might  be  given  in  evidence,  and  this  information  would 
be  given  from  the  allegation  that  the  matter  of  the  publica- 
tion in  question,  was  prosecuted  because yc//.se. 

But  can  an  indictment,  in  contemplation  of  law,  be  prof- 
fered, which  does  not  charge  an  offence  f  The  investigation 
of  official  conduct,  or  where  the  matter  published  is  proper 
for  public  information,  may  be  a  duty  :  it  is  certainly  a  pri- 
vilege. There  must  be  an  offence  charged  ;  or  how  can  a 
grand  jury  be  justified  in  finding  a  bill  ?  An  indictment  for  a 
trespass,  M'ithout  alleging  a  breach  of  the  peace^  cannot  be 
supported.  And  so  in  the  case  of  every  misdemeanor,  and 
of  every  crime  ;  the  act  alleged  to  have  been  committed, 
must  of  itself,  constitute  an  offence  against  the  public.  False' 
hood  on  the  subject  matter  of  the  indictment  is  here  made 
the  essence  of  it,  by  admitting  the  truth  to  justify.  The 
law  of  libel  is  changed  in  this  particular:  and  the  prosecu- 

F  F 


226  Law  Miscellanies. 

tion  must  be  modelled  according  to  the  change.  The  neces- 
sity of  alleging  the  falsehood  of  the  libel  in  an  action  for  a 
libel  must  be  the  same  on  an  indictment,  where  the  same 
proof  is  made  to  constitute  a  defence.  There  is  no  distin- 
guishing or  getting  over  it  on  principle  of  individual  safety  or 
public  policy  ;  or  the  analogy  of  precedent.  Nor  ought  we 
to  use  astutia  or  strain  a  construction  to  get  over  it;  but 
rather  in  the  spirit  of  the  constitution,  amplify  and  give  a 
liberal  construction  to  a  remedial  provision  ;  and  which,  the 
nature  of  our  republican  institutions  seems  to  demand,  for 
nothing  can  be  so  conservative  of  a  free  government  as 
perpetual  vigilance,  and  free  discussion  of  the  integrity,  or 
wisdom  of  the  administration  of  affairs,  or  of  the  qualifica- 
tions for  official  duty  in  such  as  are  called  upon,  or  offer 
themselves  for  office  or  delegation.  The  manner  in  which 
this  \%  d.ontvci?iy  he  exceptionable  ;  but  the  thing  is  necessary y 
and  without  which  the  spirit  of  liberty  could  not  be  pre- 
served. I  incline  therefore,  even  in  a  doubtful  construction, 
to  lean  to  that  most  favorable  to  the  freedom  of  the  press ; 
and  the  privilege  of  citizens  to  be  heard  on  the  official  con- 
duct of  officers,  or  men  in  a  public  capacity,  or  where  the 
matter  published  is  proper  for  public  information. 

That  this  is  a  remedial  provision  of  the  constitution,  will  be 
known  from  a  consideration  of  what  had  been  understood  to 
be  the  rule  before  the  constitution,  viz.  "  that  on  an  indictment 
for  a  libel  the  truth  could  not  be  given  in  evidence^  it  being 
immaterial  with  respect  to  the  essence  of  a  libel,  whether 
the  matter  of  it  were  true  or  false,  since  the  provocation  and 
not  the  falsity  was  the  thing  to  be  punished  criminally ; 
though  the  falsehood  of  it  rtiight  aggravate  its  guilt,  and  en- 
hance its  punishment."  4  Black.  150.  For  which,  so  far  as 
respected  private  persons  and  matters  not  proper  for  public 
information,  there  might  be  reason;  but  for  which,  in  the 
cases  specified,  the  public  interest,  in  the  opinion  of  the  fra- 
mers  of  the  constitution,  required  a  different  rule.  Now  if 
the  truth  is  to  be  given  in  evidence  in  the  cases  specified, 
why  shall  not  the  falsehood  be  alleged?  Will  not  the  truth 
amount  to  a  justification  ?    It  could  not  be  the  meaning  that 


Law  Miscellanies.  22r 

the  truth  might  be  given  in  evidence  in  extenuation  of  the 
offence ;  for  that  would  go  to  the  court,  and  not  to  the  jury ; 
for  though  it  might  affect  the  punishment,  it  would  not 
change  the  nature  of  the  verdict,  there  being  no  such  thing 
as  a  verdict  of  less  or  more  guilty,  but  simply  guilty  or  not 
guilty.  The  truth  therefore  must  justify  ;  and  is  admissi- 
ble in  evidence  with  a  view  to  that  effect.  Shall  not  the  false- 
hood then  be  charged  in  the  indictment  ?  in  the  case  of  an 
information,  it  is  charged  ;  and  no  information  unless  where, 
in  the  nature  of  it,  an  exception  lies,  will  be  allowed  to  be 
filed  but  on  affidavit  of  the  falsehood  of  the  libel.  Doug.  372. 
The  grand  jury  can  have  the  oath  of  the  prosecutor  who 
claims  the  interference  of  the  commonwealth,  and  in  the  spe- 
cified cases,  may  be  sent  up  by  the  officer  for  the  common- 
wealth ;  and  there  is  the  same  reason  as  in  the  case  of  an  in- 
formation, why  he  should  first  lay  a  ground  by  an  averment 
of  his  innocence,  in  regard  to  the  allegations  of  the  libel,  be- 
fore the  indictment  is  sustained,  so  far  as  to  be  found ;  and 
with  a  view  to  this,  falsehood  must  be  charged.  "■  The  charge 
must  contain  such  a  description  of  the  crime,  that  the  defen- 
dant may  know  what  crime  he  is  called  upon  to  answer,  that 
the  jury  may  be  warranted  in  their  conclusion  of  guilty  or 
not  guilty  upon  the  premises  delivered  to  them  ;  and  that  the 
court  may  see  such  a  definite  crime^  that  they  may  apply  the 
punishment  the  law  prescribes."  Cowp.  682.  An  affirma- 
tive verdict  couples  the  probate  with  the  allegata;  and  we 
cannot  legally  apply  the  verdict  to  more  than  the  allegata,  or 
charge  of  the  indictment,  which  of  itself  containing  no  of- 
fence, no  culpability  can  exist ;  and  the  technical  finding  cul- 
pabilis  or  guilty,  can  refer  only  to  the  act  alleged,  which  is 
not  criminal.  It  will  not  be  seen  from  an  inspection  of  the 
record  that  the  court  had  before  them  a  conviction  whereon 
to  ground  a  judgnent.  For  it  stands  indifferent  whether  the 
publication  is  an  offence  or  justifiable.  But  maliciously  pub- 
lishing, as  laid  in  an  indictment,  will  not  that  constitute  a 
crime  ?  Taking  it  in  the  popular  acceptation  of  the  word  it 
will  not.  For  meaning  personal  enmity,  it  can  afftct  only 
the  political,  or  moral  nature  of  the  act.     For  even  malice 


228  Law  Misckllanies. 

expressly  proved,  in  doing  what  is  justifiable,  will  not  make 
it  blameable,  though  it  may  take  av/ay  from  the  merit  of  the 
act  so  far  as  respects  the   doer ;  and  where  what  is  done  is 
wrong,  the  best  intention  cannot  justify  the  act ;  for  evidence 
of  the  quo  animo  can  absolve  from  guilt  only,  where  it  goes 
to  shew  that  the  actor  did  not  mean  to  do  the  act,  or  a  criminal 
act  of  which  it  was  the  consequence.     It  cannot  alter  the 
nature  of  the  act,  though  it  may  reduce  the  degree  of  the  ma- 
lignity;  and  be  considered  by  the  judge  in  aliixing  the  pun- 
ishment, where  the  law  gives  him  a  discretion.    Evidence  of 
express  malice    in  the  case  of  a  malicious  prosecution  will 
not  support  an  action,  provided  there  was  probable  cause  for 
the  prosecution.     This  proves   that  malice  in  the  popular  ac- 
ceptation of  the  term,  can  go  but  in  aggravation  of  a  wrong 
committed,  and  is   not  of  the  essence  of  the  wrong.     The 
?nalice  which  the  law  hiozvs,  is  quite  a  different  thing  ;  it  is  the 
bad  mind  which  is  inferred  from  the  bad  act,  and  the  act 
must  be  established  before  badness  of  mind  can  be  inferred. 
Ex  malitia,  publishing,  is  the  characteristic  of  the  act  of  false- 
ly publishing ;  and  I  do  not  find  that  in  the  case  of  any  other 
offence,  the  allegation  of  an  ex  malitia  will  supply  all  the  alle- 
gation of  a  crime  in  the  act  done.     It  will  not  in  felony  ;  nor 
will  it  supply  the  defect  of  force  and  arms  in  a  trespass,  so  as 
to  render  it  indictable.     It  may  not  be  necessary  to  constitute 
a  seditious  writing  that  it  be  false  ;    for  it  is  not  the  truth  of 
the  words  that  is  in  question,  but  the  tendency  and  object  of 
words  to  unsettle  the  government,  or  obstruct  the  laws. 

The  truth  of  speculative  opinions  cannot  be  traversable ; 
or  the  policy  of  a  law  ;  and  therefore  in  seditious  attempts, 
by  publications,  to  unsettle  the  government,  and  excite 
opposition  to  the  laws,  the  falsity  of  opinions  need  not  be 
averred ;  but  in  an  indictment,  though  the  court  on  which  a 
verdict  has  been  for  the  commonwealth,  charges  the  "  com- 
bining and  intending  by  the  publication  seditiously  to  dis- 
turb the  peace,  tranquillity,  and  happiness,  of  the  people  of 
the  state,"  yet  it  is  as  a  consequence  of  the  libel  on  the  per- 
son of  the  ofiicer ;  and  it  would  seem  that  it  could  not  be 
.ConiiidercA  anindictruenir  for  sedition,  and  out  oftheprovi- 


Law  Miscellanies.  22f 

sion  of  the  constitution  for  a  personal  libel ;  for  an  indict- 
ment might  be  so  framed  in  every  case  as  to  give  it  the  ap- 
pearance of  an  indictment  for  the  sedition,  and  so  defeat  the 
provision. 

But  if  falsity  must  be  alleged  in  every  bill  sent  up  to  a 
grand  jury,  in  the  case  of  a  publication  personally  libellous, 
how  shall  the  jury  ascertain  the  falsity  where  in  the  nature  of 
the  case  the  prosecutor  ci:nnot  be  sworn  to  the  falsity;  as 
where  the  defamation  consists  of  general  abuse,  as  depravit)' 
of  heart,  disaffection  to  insiiLutious,  intentions  hostile  to  li- 
berty, &c.  I  answer  that  if  an  indictment  can  ly  at  all,  in  our 
republican  government;  for  such  freedom  of  opinion  with  re- 
gard to  public  officers,  the  grand  jury  who  must  presume 
in  favour  of  the  officer  will  be  justifiable  in  making  the  accu- 
sation of  falsity,  and  the  finding  is  but  an  accusation.  But 
if  maliciously  will  supply  the  term  falsity,  how  will  the  grand 
jury  be  justifiable  in  finding  the  maliciously,  which  is  but 
an  implication  from  the  falsity,  and  yet  it  will  not  be  said 
that  without  the  term  maliciously,  the  publication  barely  set 
out  in  the  indictment  could  support  an  indictment.  The 
truth  might  have  been  given  in  evidence  and  the  w^ords  pro- 
ved false ;  but  not  appearing  on  the  record,  it  must  stand  as 
if  judgment  had  gone  on  the  barely  publishing  the  words. 

When  the  truth  may  reasonably  be  expected  to  be  given 
in  evidence,  in  all  cases  where  it  exists,  the  leading  the  way 
for  it,  by  charging  falsity,  may  seem  to  be  unnecessary ;  but 
I  must  feel  myself  absolved  from  the  rules  of  strict  construc- 
tion, which  the  law  applies  to  criminal  proceedings,  before 
I  could  think  otherwise. 

Bad  precedents  are  set  in  good  cases ^  is  a  principle  which 
will  apply  in  all  cases,  and  which  though  it  may  regardyorw, 
yet  will  protect  substance^  and  fortify  the  provision  of  the 
constitution,  by  shewing  from  the  form  of  charging  the  of- 
fence, what  defence  may  be  set  up  ;  and  more  especially,  as 
a  distinction  might  creep  in  between  admitting  the  truth  in 
extenuation,  and  in  justification;  and  it  might  be,  grow  into 
a  construction,  that  though  admitted  to  the  jury,  it  Avas  in 
'srder  to  reach  the  court,  and  direct  their  discretion  in  modi- 


a30  Law  Miscellanies. 

fying  the  sentence.  On  this  last  consideration  which  per- 
haps outweighs  all,  I  think  the  alleging  the  publication  to 
be  false,  ought  to  be  held  essential. 


IV  Black.  Com.  150. 

By  an  act  of  Assembly,  1809,  it  was  provided  "  that  no 
person  shall  be  subject  to  prosecution  by  indictment  for  the 
publication  of  papers  examining  the  proceedings  of  the  le- 
gislature, or  any  branch  of  government,  or  for  investigating 
the  official  conduct  of  officers,  or  men  in  public  capacity," 
And  sec.  11.  "  That,  in  all  actions  or  criminal  prosecutions 
of  a  libel,  the  defendant  may  plead  the  truth  thereof  mjustiji- 
cation^  or  ^ive  the  same  in  evidence.''  This  act  was  subject 
to  a  limitation  of  three  years,  "  andjrom  thence  to  the  end  of 
the  next  sesnion  of  the  legislature.''^  I  have  not  seen  in  the 
title  of  acts  of  the  last  session,  a  continuance  of  this  act :  It 
would  seem  therefore  to  have  expired. 

It  was  a  great  safety  to  the  judiciary  to  be  relieved  from 
the  necessit)^  of  imposing  fines  in  case  of  prosecutions  under 
the  law  as  it  before  stood.  For  the  imposing  fines  in  the 
case  of  men  in  public  capacity  prosecuting,  never  failed  to 
draw  with  it  much  obloquy  from  the  libellers,  and  the  peo- 
ple not  discriminating  the  liberty  of  the  press,  from  the 
abuses  of  it,  most  usually  ranged  themselves  in  their  sympa- 
thies on  the  side  of  those  prosecuted.  Hence  it  was  that 
^nes  were  remitted  ;  or  where  imprisonment  made  a  part  of 
the  sentence,  in  the  case  of  editors  of  Gazettes  especially, 
their  subscriptions  were  increased ;  and  where  the  authori- 
ties of  the  publications  were  given  up,  or  where  they  avowed 
their  writing,  it  was  a  passport  to  public  favour,  and  often- 
times to  the  suffrages  of  the  community  for  a  public  trust. 
This  proved  that  such  prosecutions  by  indictment  in  the  case 
of  libel  were  far  from  being  popular. 

The  judiciary  found  a  safety  in  being  relieved  from  the- 
necessity  of  imposing  fines,  or  sentencing  to  imprisonment; 


Law  Miscellanies.  231 

for,  though  their  own  flanks  were  left  uncovered,  from  this 
protection  of  the  law  being  withdrawn,  so  that  an  indict- 
ment could  not  be  sustained  on  their  behalf  for  matters  re- 
lating to  official  conduct ;  yet  they  could  not  but  find  it  safer 
to  be  exposed  to  general  calumny,  than  to  be  under  the  neces- 
sity of  drawing  upon  themselves  the  attacks  of  the  malevolent, 
or  their  friends,  who  were  personally  irritated ;  and,  came 
forward  to  take  a  revenge  through  the  medium  of  the  public 
papers. 

But,  the  libellers  themselves  would  not  seem  to  have 
found  their  account  in  this  lav/.  For  prosecutions  by  action 
being  now  the  only  mode  of  obtaining  satisfaction  by  the  per- 
sons aggrieved,  and  the  juries  assessing  damages  which  they 
began  to  do  pretty  liberally,  they  could  not  raise  the  cry  of 
persecution,  not  for  coiiscience  sake^  but  for  what  was  equally 
sacred^  the  liberty  of  the  press ;  which  was  alleged ;  however 
unreasonaably,  in  their  case,  to  be  concerned. 

Owing  to  these  or  other  causes^  I  do  not  find  that  during 
this  interregnum  of  the  law,  as  it  might  be  stiled,  libelling 
had  increased ;  and  yet,  the  natural  consequence  would 
seem  to  be,  that  it  would  have  increased.  For  it  would 
seem  to  have  been  a  great  matter  for  the  libellers,  to  have 
it  provided  for  them  under  sec.  11.  that  the  truth  shall 
in  all  cases  of  indictment  be  given  in  evidence.  So  that  where  a 
public  or  private  person  xvas  the  subject  of  the  libel^  he  must 
be  under  the  necessity  of  proving  the  calumny  false;  which, 
even  though  Jalse  and  groundless,  might  not  be  convenient,  or 
pleasing  thing  to  do.  For  all  libel,  usually  consists  in  cari- 
catureox  exaggeration  of  the  picture,  and  it  might  not  be  easy 
to  discriminate  and  shew  to  the  conviction  of  the  world,  what 
was  excess,  and  what  was  real. 

But  what  is  more,  there  are  many  things  which  may  be, 
and  often  are  in  the  hands  of  the  malicious  made  the  subject 
of  slander,  which  though  in  a  great  degree  groundless,  yet 
may  have  some  foundation  in  collateral  circumstances  ;  so  that 
the  refutation  must  affect  those  concerned,  or  others,  not  to 
the  extent,  but  in  some  degree.  They  might  judge  it  better, 
thereforeto  bear  the  whole,  than  to  have  the  matter  stirred. 
What  might  affect  domestic  peace,   or  the  reputation  of  a 


232  Law  Miscellanies. 

neighbour^  might  also  be  a  reason  for  not  wishing  to  have  the 
matter  brought  into  public  view. 

How  the  act  might  have  been  for  the  administration  of 
justice  generally  salutary,  and  otherwise,  is  another  question. 
The  power  which  the  courts  had  by  the  common  law  to  impose 
fines,  or  imprison  in  the  case  of  defamers,  was  not  a  trust  for 
themselves,  but  for  the  people.  If  the  people  chose  to  take 
it  away,  it  was  their  affair  :  they  were  principally  interested. 
The  officer  for  the  time  being,  judicial  or  otherwise,  had  not 
more  an  interest  in  the  suppression  of  personal  abuse  than  the 
rest  of  the  community. 

It  might  have  been  one  reason  why  libelling  did  not  seem 
to  prevail  more  during  the  period  we  speak  of,  that,  before 
this  time  it  had  proceeded  to  the  utmost  excess,  and  the 
public  mind  had  begun  to  revolt  at  the  licentiousness  of  the 
press  ;  not  only  the  conduct  of  individuals,  in  discharge  of 
public  functions,  legislative,  judicial,  or  ministerial,  was 
misrepresented  ;  but  matters  which  did,  in  no  way  concern 
the  discharge  of  their  duty  werie  made  the  subject  of  animad- 
version, and  reproach.  Nor  was  this  all  j  but  such  as  had 
pretensions  to  office  were  attacked  in  order  to  defeat;  and 
the  effect  of  the  defamation  in  this  particular  was  felt  by  the 
community.  A  certain  editor  was  known  to  boast  that  he 
could  ivrite  down  any  man  in  six  weeks.  Cobbet  and  Callen- 
der,  I  do  not  mention  resident  or  living  persons,  had  done 
good  service  indirectly,  though  they  did  not  mean  it,  in 
bringing  into  disrepute  the  language  of  what  the  English 
call  Billingsgate  ;  and  that  abuse  which  knows  no  restraint 
of  decency,  delicacy,  or  refinement.  They  had  set  such  an 
example  that  all  men  saw  the  consequence  of  approving^  and 
the  more  viperous  ceased  to  be  encouraged  in  their  burlesque, 
and  malicious,  and  often  false  colouring  and  representation. 

It  was  thus  that  in  Massachusetts?,  in  the  time  of  those 
fanatics  the  Mathers,  when  credulity  in  witch-craft  prevailed, 
and  whole  families  were  put  to  death  on  this  suspicion,  it  was 
in  vain  that  reason  and  philosophy  interposed.  Not  until  the 
accusation  became  so  general  as  to  alarm  th^  bulk,  would 
they  for  a  moment  be  brought  to  doubt  of  the  credit  of  the  tes- 
timony; or  to  see  the  absurdity  of  the  belief. 


Law  Misckllanies.  236 

The  constitution  of  this  commonwealth,  by  implication 
Would  seem  to  give  the  prosecution  by  indictment.  For 
though  the  term  may  apply  to  the  prosecution  by  a  civil 
suit,  yet  the  provision  of  giving  the  truth  in  evidence,  which 
had  been  always  allowable  in  civil  actions,  shews  the  term 
to  have  a  reference  to  a  proceeding  as  for  a  misdemeanor. 
It  cannot  therefore  be  said,  not  to  be  an  abridgment  of  con- 
stitutional right,  for  men  in  a  public  capacity  not  to  have  the 
privilege  of  prosecuting  by  indictment ;  and  where  the  mat- 
ter published,  is  not  proper  for  public  information,  to  have  the 
trtith  given  in  evidence. 

In  the  case  of  a /7r?t;afe/>fr*0M,  the  prosecuting  by  indict- 
ment is  not  taken  away  by  this  act,  but  the  specification  in 
the  constitution  of  men  in  a  public  capacity,  and  a  matter 
proper  for  public  information,  where  the  truth  may  be  given 
in  evidence,  carries  with  it  an  itnplication,  that  in  a  prosecu- 
tion by  indictment,  in  the  case  of  n  private  person,  the  truth 
cannot  be  given  in  evidence.  So  far  therefore  this  act  was 
a  departure  from  the  spirit  of  the  constitution. 

But  is  it  not  reasonable  that  the  truth  in  all  Cases  should 
be  given  in  evidence  ?  The  reason  of  the  common  law,  which 
has  grown  up  from  experience,  would  seem  to  have  not. 
And  if  we  apply  our  own  reason,  it  would  not  be  difficult, 
a  priore,  to  carry  the  giving  the  truth  in  evidence  farther 
than  the  constitution  would  seem  to  have  done.  This  is  in 
the  case  of  men  in  public  capacity,  and  where  the  matter 
published,  is  proper  for  public  information. 

It  might  be  said,  that  all  men  in  public  office  are  fair 
game,  and  may  be  hunted  down  by  bringing  into  view  even 
their  foibles,  extra-judicial  aberrations,  and  exaggerating,  or 
caricaturing  them.  Or  more  plausibly  it  might  be  said,  that 
extra-judicial  immorality,  or  even  a  deviation  from  the  dig-^ 
nity  of  official  station  ;  and  the 

— decens  et  decorum — 
might  deserve  to  be  stigmatized.  But  allow  this  to  asatyrist, 
and  where  will  it  end  ?  Give  an  inch  and  he  will  take  an  ell. 
He  will  not  be  content  with  a  candid  examination  of  the  defect 
or   error,  but   carry  it   far  beyond  the    truth,  like    some  of 

G  G 


234  Law  Miscellanies. 

those  minerals  that  eat  away  the  fungus,  and  then  corrode  the 
solid  flesh.  Will  it  not  be  sufficient  that  all  matters  of  this  tia* 
ture  may  be  brought  before  the  legislature^  who  have  the  con- 
stitutional power  of  removing  from  office  ;  and  in  which  case 
and  that  of  infirmity  and  incapacity  it  is  alone  perhaps 
the  constitutional  proceeding.  For  in  the  case  of  a  mis' 
demeanor  i/z  offce^  the  redress  by  impeachment  is  provided. 

But,  in  the  ca.se  of  private  persons  who  endeavour  to  pur- 
sue, in  humble  life, 

The  noiseless  tenor  of  their  way. 

Or  who  court  the  shade,  and  have  chosen  the 

■  fallentis  semita  vitse. 
Why  drag  their  frailties  from  their  dread  abode;  why  intro- 
duce, though  true,  what  does  not  concern  the  community  ?  It 
is  unprofitable  to  the  public  and  increases  the  miseries  of  hu' 
man  life  to  individuals,  which  are  enough,  God  knows,  in  all 
conditions,  situations,  and  relations.  That  even  the  truth 
ought  not  to  be  told  at  all  ti?nes,  is  a  proverb  as  old  as  the  ex- 
perience of  man.  Breaches  of  the  peace  would  be  unavoid- 
able in  such  licence  were  permitted  for  a  length  of  time. 
For  I  lay  out  of  the  question  that  breaches  of  the  peace,  have 
not  perhaps  multiplied  within  these  three  years,  during  which 
time  this  act  has  existed.  Fori  look  to  the  permanent  e^ect, 
and  this  must  be  deduced  from  the  nature  of  things,  and 
the  experience  of  ages,  rather  than  the  experiment  of  a  period. 

In  the  nature  of  things  it  is  impossible,  but  that  where 
matters  are  brought  into  view  of  no  public  concern  ;  whether 
in  the  case  of  public  men,  or  private  persons,  and  where  the 
matter  is  rather  vexatious  than  infamous,  wounding  to  the 
feelings,  more  than  injurious  to  the  estate,  a  breach  of  the 
peace  should  not  ensue,  and  it  is  upon  this  experience  that 
the  common  law  is  founded,  in  not  suffering  such  matters  to 
be  at  all  broached  or  any  thing  heard  about  tiie  truth  of  them. 
For  being  nothing  to  the  community  whether  true  or  false, 
but  of  great  consequence  that  the  peace  be  preserved,  it  is 
the  principle  that  truth  or  no  truth  is  no  justification  of  libel- 
ers  in  such  cases.  On  the  contrary  it  is  the  law,  that  the  great- 
er the  appearance  of  truth  given  to  the  libel,  it  is  the  more 
provoking,  which  maxim  misunderstood,  has  led  to  that  die- 


Law  Miscellanies.  235 

turn,  that  "  the  greater  the  truth,  the  greater  the  libel.^^  Or 
perhaps  it  maybe  explained  by  saying,  that  the  greater  the 
weakness,  or  aberrations  which  humanity  would  keep  out  of 
view,  it  is  the  more  provoking  to  have  it  brought  before  the 
public,  and  the  more  irresistibly  impels  to  outrage  ;  and  for 
which  reason,  the  law  will  more  guard  against  such  provoca- 
tion and  consider  it  the  greater  libel.  Be  that  as  it  may,  the 
/»o/zcy  of  the  law  is  the  preservation  of  the  peace.  And,  is  it 
reasonable  that  the  law  should  extend  the  prosecution  by  in- 
dictment to  assaults  and  batteries,  and  permit  no  excuse  of 
words  or  writing  to  be  setup  as  justification,  or  even  given 
in  evidence  on  the  plea  of  not  guilty,  as  matter  of  excuse  ; 
but  to  the  coui-t  only  after  verdict ;  and  yet  that  ^Ae  truth  of 
an  indictment  for  words,  or  writing  the  truth  should  be  ad- 
mitted to  justify  the  speaking,  or  writing,  when  the  proving 
the  words  false,  or  even  malicious,  would  not  justify,  or  on  the 
trial  even  ^.x-czwe the  battery  ?  Shall  the  ^rt;^£'//Mm,  or  whip  of 
calumny  have  greater  privilege  than  the  club  of  strength? 

Intending  these  strictures  more  for  the  legislature,  than 
the  profession ;  for  I  would  not  take  it  amiss  if  the  greater 
part  of  lawyers  should  think  themselves  above  viy  instruction, 
I  do  not  enter  into  a  consideration  of  the  kao  of  libels.  But 
so  far  only  as  to  take  notice  of  the  observations  of  Barring- 
ton  on  the  statutes  quoted  by  Judge  Tucker  in  his  edition  of 
the  commentaries ;  for  I  have  not  Barrington  by  me  at  the 
present,  to  refer  to;  viz.  "That  the  general  rules  laid  down 
by  the  court  of  Star-chamber  in  Pickering*s  case,  5  Coke  125, 
from  whence  the  doctrines  contained  in  the  text  are  borrow- 
ed, are  either  extra-judicial,  or  not  maintained,  one  of  which 
Lord  Coke  himself  contradicted  on  another  occasion ;  and 
that  the  reason  of  the  questionable  doctrines  contained  in  that 
case,  arises  from  every  one  of  those  rules  being  borrowed 
from  the  civil  law,  that,  when  we  consider  the  source  from 
whence  these  doctrines  have  been  brought  to  us,  the  reason- 
ableness of  them  ought  to  be  examined  before  we  yield  our 
full  assent  to  all  of  them.'''* 

It  is  my  way  of  thinking  that  the  reasonableness  of  all 
(doctrine  ought  to  be  examined^  and  this  on  the  ground  of  pub 


2S6  Law  MiscellAkies. 

lie  policy,  and  general  convenience;  but  I  will  acknowledge 
that  I  am  not  able  to  discover  any  thing  unreasonable  in  the 
doctrines  as  laid  down  in  the  text  of  Blackstone. 

Some  of  the  doctrines  laid  down,  5  Coke,  125,  may  be 
derived  from  the  civil  law ;  but  so  far  as  the  text  of  Black- 
stone goes  there  xvould  seem  to  be  nothing  that  has  not  its 
source  in  the  common  law,  or  sanctioned  by  it. 

It  may  be  observed  that  Blackstone  does  not  adopt  every 
principle  laid  down  in  the  star-chamber  case,  particularly  that 
"  where  a  man  finds  a  libel,  if  it  concerns  a  magistrate  or  other 
public  person,  the  jinder  ought  presently  to  deliver  it  to  a 
magistrate  to  the  intent  that  by  examination  and  industry, 
the  author  may  be  found  out  and  punished."  This  princi- 
ple I  do  not  approve.  For  I  think  the  finder  is  not  under 
an  obligation  to  take  any  notice  of  it  in  the  case  of  a  public 
person,  unless  it  concern  the  commtmity,  but  is  at  liberty  to 
burn  it,  as  it  is  admitted  he  may  do,  in  the  case  of  a  libel 
on  a  private  person.  But  taking  it  that  it  is  a  writing  which 
affects  the  safety  of  the  government,  and  in  which  case  it  is, 
I  presume,  that  it  is  meant  to  be  enjoined  as  a  duty,  I 
do  not  say  that  I  find  even  this  exceptionable.  But  the  court 
of  star-chamber  got  an  ill  name,  and  deservedly,  from  many 
usurpations,  and  the  proceedings  in  the  case  of  libel  as  in 
other  matters,  being  by  information,  and  withotit  a  jury,  it 
was  justly  odious,  and  even  its  doctrines,  where  salutary, 
were  suspected  and  unpopular ;  and  hence,  to  brand  a  doc- 
trine with  the  name  of  star-chamber,  carries  with  it  a  de- 
gree of  reprobation. 


IV  Bl.  Com.  194. 

BY  an  act  of  March  5d,  1812,  the  governor  was  requir- 
ed "  to  request  the  Attorney  General,  to  draft  and  prepare  a 
bill  consolidating  the  whole  of  the  penal  lav.s  of  this  com- 
monwealth ;  and,  suggesting  what  additions,  alterations,  and 
changes  should  take  place  in  the  system,  for  the  purpose  of 


Law  Miscellanies.  Q37 

laying  before  the  next  legislature."  I  know  not  whether  the 
attorney  general  may  think  proper  to  suggest  any  al- 
terations, or  chafige,  with  respect  to  the  punishment  of  death 
in  any  case.  But,  be  that  as  it  may,  the  expression  of  the 
will  of  the  legislature  to  hear  what  may  be  suggested,  gene- 
rally, on  the  ponal  code,  has  emboldened  me,  though  not  with- 
in the  legislative  request,  to  suggest  what  has  occurred  to  me, 
in  my  reflections  on  the  subject  of  capital  punishment  in  the 
ease  of  murder  in  the  first  degree  ;  which  now  remains  the 
only  case,  in  which,  the  puiyshment  is  capital. 

In  limine,  or,  at  the  threshhold  of  an  examination  of  what 
relates  to  this,  we  are  arrested  by  the  language  of  Revelation  ; 
"  whoso  sheddeth  man's  blood,  by  man  shall  his  blood  be 
shed."     Gen.  9th,  6. 

The  context,  as  the  divines  would  say,  is  in  these  words  ; 
*'  and  surely  your  blood  of  your  lives  will  I  require  ;  at  the 
hand  of  ever)'  beast^  will  I  require   it ;  and  at  the  hand  of 
man  ;  at  the  hand  of  every  man's  brother,  will  I  require  the 
life  of  man." 

Were  it  not  for  the  preceding  words,  I  should  have 
been  disposed,  to  have  considered  those  of  the  text,  as  con- 
taining a  denunciation  merely^  of  what,  in  the  course  of  things, 
would  most  usually,  and  most  naturally  happen;  viz  :  that, 
in  revenge  of  the  person  slain,  some  one  would  be  prompted 
to  slay  the  slayer;  so  that,  in  a  course  of  retributive  justice; 
and,  in  this  sense, it  might  be  said,  "whoso  sheddeth  man's 
blood,  by  man  shall  his  blood  be  shed  :"  but  the  words  of 
the  context  do  not  leave  room,  in  fair  and  candid  construc- 
tion, for  such  a  meaning,  to  be  put  upon  them  :  it  must  be 
taken,  as  enjoining  the  ave7iging  of  the  blood  of  tran. 

But  is  this  injunction  to  be  considered,  as  respecting  men 
in  a  state  of  nature  ;  or,  in  a  state  of  society  ?  Doubtless, 
not  to  men  in  a  state  of  nature  onlif  ;  but  also  in  a  state  of  so- 
ciety ;  because  being  promulgated  to  Noah,  who  was  in  a 
state  of  society  ;  though  his  family  consisted  but  of  eight 
persons  ;  it  cannot  but  be  considered  as  extending  to  that 
association  ;  and,  to  all  others  that  might  spring  from  them. 
This  must  silence  the  allegation  of  those  Avho  undertake  to 


238  Law  Miscellanies. 

say,  that  no  poxver  can  exist  in  the  social  state^  to  put  a  niaui 
to  death  ;  /  speak  of  vioral  or  lawful  power. 

But,  taking  it  up,  independent  of  Revelation ;  and,  on  the 
principle  of  reason,  why  is  it  that  the  lawfulness  of  putting 
to  death  in  a  state  of  society,  shall  be  questioned  ?  It  is  said 
to  be  because  the  individual  entering  into  the  social  state, 
can  surrender  to  the  community,  no  power,  but  that  which 
he  himself,  in  a  state  of  nature  had  possessed ;  and  having 
no  power  over  his  own  life,  he  could  not  surrender  that 
which  he  had  not.  But  this  is  a  fallacy ;  for,  it  is  not  a 
power  over  his  own  life  which  he  surrenders  ;  but  the  right 
to  preserve  it^  at  the  expense  of  the  life  of  him  who  would 
take  it  away. 

It  is  this  right  of  self-preservation  which  is  surrendered ; 
and  unless  in  a  case,  where  self-preservation  is  inconsistent 
Avith  delay,  the  taking  the  life  of  an  assailant  is  not  warrant- 
ed by  any  municipal  law.  But  this  right  of  self-preserva- 
tion so  surrendered  to  a  community,  warrants  the  interfer- 
ence of  the  body  politic  to  protect  from  the  assailant,  who 
attempts  homicide ;  and,  if  that  cannot  be  done,  to  provide 
against  what  may  be  presumed  to  be  likely  to  be  atttempted 
by  the  same  offender  against  the  life  of  others.  What  can 
this  provision  be  ?  The  most  certain,  unquestionably,  will  be 
putting  an  end  to  the  power  of  action  in  the  offender.  This 
must  render  it  physically  certain  that  this  individual  who  has 
shown  himself  to  be  hostis  humani  generis ;  or,  in  the  light 
of  an  enemy  of  mankind,  will  not  again  have  it  in  his  power 
to  take  away  the  life  of  another.  But  would  it  not  be  enough, 
if  it  could  be  rendered  morally  certaiji^  that  he  should  not 
have  it  in  his  power  again,  to  take  away  the  life  of  any  one  ? 
Does  not  the  highest  degree  of  probability  approach  so  near- 
.  Jy  to  absolute,  as  to  be  scarcely  distinguishable  from  it :  to 
be,  in  fact,  to  all  practicable  purposes,  the  same  thing  ?  A 
man  so  confined  as  to  be  to  all  human  probability,  out  of  the 
way,  and  not  likely  to  have  it  in  his  power  to  take  the  life  of 
another,  would  seem  to  be  much  the  same  thing  as  a  dead 
man  to  the  social  state;  and  no  longer  endangering  the  safe- 
ty of  an  individual  of  the  comjnunity. 


Law  Miscellanies.  239 

But  still  he  is  not  dead ;  physically  dead,  says  the  ob- 
jector ;  and  the  "  whoso  sheddeth  man's  blood,"  &c.  is  in 
the  way.  I  grant  it  is;  but  this  injunction,  cannot  be  con- 
sidered more  than  a  general  rule ^  and  subject  to  exceptions. 
What  was  the  occasion  of  this  precept  to  Noah  ?  It  was  the 
destruction  of  the  whole  race  of  man,  by  a  flood,  eight  per- 
sons excepted.  What  was  the  object  ?  The  preservation  of 
man  in  order  to  replenish  the  earth.  Will  it  not  be  inconsis- 
tent with  this  object  to  take  away  the  life  of  a  man,  provided 
the  preservation  of  human  life  can  be  equally  guarded  and 
attained  ?  This  is  the  exception;  and  as  the  jurists  say,  makes 
it  a  part  of  the  rule  ;  it  must  be  considered  as  co-existent 
with  it,  and  involved  in  the  nature  of  it.  Where  the  letter 
of  the  law  is  inconsistent  to  any  extent,  with  the  spirit  of  it, 
the  spirit  must  prevail.  This  is  a  rule  of  interpretation  in  all 
laws  human  and  divine. 

But  the  legislator  of  the  Jews  who  has  recorded  this 
precept;  for  we  assume  it  that  he  was  the  author  of  the  five 
books,  or  Pentateuch,  as  the  Septuagint  calls  it,  has  given  us 
a  practical  application  of  the  precept ;  and  has  laid  it  dowa 
in  his  law,  that,  "the  murderer  shall  be  put  to  death."-— 
Numb.  XXV.  6.  This  goes,  in  express  terms,  to  sanction  the 
right  of  a  society  to  inflict  death.  But  what  was  the  state  of 
the  Jewish  society  to  whom  this  law  was  given  ?  Were  they 
in  a  situation  to  be  able  to  preserve  themselves  from  homicide, 
without  such  extermination  of  an  individual  who  had  com- 
mitted murder  ?  In  a  wandering  state  of  society,  in  a  wilder- 
ness, had  they  the  means  of  self-preservation  by  confinement, 
and  keeping  to  hard  labour.  This  being  the  case,  could  the 
injunction  be  understood  otherwise  than  as  having  relation 
to  the  condition  of  the  people  ?  Can  it  be  of  binding  obliga- 
tion at  all  times,  and  in  all  cases  to  put  to  death ;  and  not 
rather  subject  to  the  reason  of  the  law  given  to  Noah,  the  pre- 
servation of  the  life  of  man  ?  Shall  the  slayer  be  slain,  who 
not  only  can  be  put  in  a  way  to  be  restrained  from  a  possibility 
of  committing  homicide;  but  may  be  also  rendered  useful, 
in  his  confinement  to  hard  labour  ?    It  would  seem  to  be  sub* 


*240  Law  Miscellanies.  , 

verting  the  end  of  all  punishment,  precavention  and  reforma- 
tion* 

The  precept  "  whoso  sheddeth  man's  blood  by  man  shall 
his  blood  be  shed,"  still  recurs.  What  has  been  the  appli- 
cation of  this  precept  from  the  earliest  existence  of  christian 
commitnitits  ?  Christianity  is  a  ground  of  the  common  law^ 
which  is  our  birthright ;  and,  yet,  this  law  admits  the  power 
of  the  society  to  pardon.  What  is  this  but  to  dispense  with 
the  injunction  given  to  Noah,  that  "  whoso  sheddeth  man's 
blood  by  man  shall  his  blood  be  shed  ?" 

By  our  constitution,  the  executive  magistrate  is  vested 
with  the  power  to  pardon.  A  felony  of  murder  is  not  ex- 
empted from  this  power.  If  the  magistrate,  who  in  this  par- 
ticular represents  the  power  of  the  society,  can  pardon,  he 
can  reprieve.  Can  there  be  any  thing  in  his  way  to  hold  the 
criminal  in  confinement  for  life  under  the  idea  of  a  reprieved 
Could  this  be  said  to  be  otherwise  than  a  dispensing  with  the 
law  of  God  ;  and  yet  our  law,  immemorially  and  our  late  and 
present  constitution  warrants  this. 

If  our  magistrate  has  the  power  of  reprieving  in  this  way, 
it  may  be  said,  why  not  exercise  it?  There  is  one  thing 
wanting,  which,  may  be  a  reason  for  not  exercising  it;  and 
this  is  the  not  having  a  power  under  a  reprieve,  to  employ 
at  hard  labour  ;  and  thereby,  to  relieve,  in  some  degree  the 
community  from  the  burthen  of  the  convict's  support.  He 
has  the  power  to  continue  a  reprieve  without  limit ;  but  it 
must  be  at  an  expence,  which,  did  the  law  go  to  embrace  this 
case,  might,  in  a  great  measure,  be  avoided ;  or  rather  the 
service  of  a  criminal  turned  to  an  indemnification  to  some 
extent,  for  the  injury  to  the  society. 

It  is  remarkable  that  it  makes  a  part  of  the  text  and  con- 
text of  the  scripture  in  this  place,  that,  in  the  case  of  a  beast 
causing  the  death  of  a  man,  it  shall  be  put  to  death ;  "  your 
lives  will  I  require  at  the  hand  of  every  beast :"  and  agree- 
able to  this  is  the  injunction  of  tlis  Jewish  Legislator.  "  If 
an  ox  gore  a  man  or  a  woman,  that  they  die,  then,  the  ox 
shall  be  surely  stoned."  Yet  in  christian  countries^  this  has 
never  been  carried  into  effect;  the  putting  the  beast  to  death 


Law  Miscellanies.  241 

in  anyway;  and  yet  this  makes  a  part  of  the  injunction  to 
Noah;  and  if  this  is  dispensed  with  under  all  christian  in- 
stitutions ;  for  I  know  of  no  exception,  why  not  admit  of 
the  like  softening  in  the  rigor  of  the  precept,  under  the  chris- 
tian dispensation,  in  the  case  of  a  homicide  by  man  .'  Under 
our  common  law,  in  the  case  of  a  beast,  causing  or  even  oc- 
casioning the  life  of  man,  it  is  forfeited  to  the  king.  1  B. 
Com.  300.  Why  not  the  like  commutation  for  death  in  the 
case  of  man ;  the  forfeiture  of  the  labor  for  life  of  the  culprit  to 
the  community.  My  deduction  is  that  the  injunction  to  No- 
ah is  not  of  universal  application  under  all  circumstances ; 
and  under  the  christian  dispensation  is  taken  away  altogether. 
So  that,  though  1  hold  it  lawful  to  put  to  death  for  murder^ 
yet  I  resolve  it  into  a  question  of  expediency^  and,  subject  to 
the  reason  of  the  law^  the  security  of  the  peace,  and  the  pre- 
servation of  the  life  of  man.  If,  consistent  with  this,  the 
criminal  can  be  spared,  it  is  inexpedient  to  put  to  death.  If, 
on  experience,  the  state  of  society  should  be  found  to  be  such 
as  to  permit  this,  without  endangering  the  community,  I, 
should  think  capital  punishment  unnecessary ;  and  it  is  only 
in  a  case  where  unavoidable,  and  necessary,  that  I  should 
think  it  justifiable. 

"  Ense  reddendum  immedicable  vtdnus.''* 
In  the  state  of  society  in  which  Noah,  and  his  immediate 
descendants,  must,  for»a  length  of  time,  he,  and,  under  the 
circumstances,  in  which  the  Jews  were :  more  especially, 
before  their  fixed  habitations  in  Judea,  and,  improved  estab- 
lishments, it  might  be  impossible,  and  it  was  certainly  mo- 
rally impossible,  that  the  people  could  be  safe,  and  a  mur- 
derer be  permitted  to  live  ;  but  a  very  different  degree  of  proof 
was  required.^  from  that  under  the  common  law  of  England^ 
which,  yet,  continues  to  be  our  law.  For,  by  the  Jewish  laws, 
*'  whoso  killeth  any  person,  the  murderer  shall  be  put  to 
death  by  the  mouth  oj  witnesses  ;  but  one  xvitness  shall  not 
testify  against  any  person  to  cause  him  to  die."  Numb. 
XXXV.  30.  And  again,  "  at  the  mouth  of  two  witnesses  or 
three  witnesses,  shall  he  that  is  worthy  of  death  be  put  to 
death,  but  at  the  mouth  of  one  witness,  he  shall  not  be  put  to 

-H  H 


24S  Laii;  Miscellanies. 

death,"     Deut.  xvii.  6.     Query,  ought  not  the  testimony  of 
these  witnesses  to  be  direct ;  and,  to  the  actual  fact  of  kill- 
ing ;    and  not   to  circumstances  only.     I  would  lake  it,  that 
the  teBtinion)'  must  have  been  positive,  and  to  the  actual  fact 
of  killing' ;    and  not  to  be  deduced  from  the  presumption  of 
circumstance.     Under  our  law,   one  witness  is   sufficient  to 
convict ;    and,  even,  where  the  testimony  goes  but  to  circum- 
stance.    In  this  respect,  our  law   is  more   sangviHary  than 
that  of  the  Jews  :  and,  even,  though  the  injunction  of  Moses 
might  be  said  to  be  given  in  this  case,  as  in  another,  "  because 
of  the  hardness  of  their  hearts."     Might  it  not  then  be  a  rea- 
son for  a  commutation  of  a  capital  punishment  for  imprison- 
ment for  life,  that,  especially,  where  a  conviction  had  taken 
place,  on   the  credit  of  one  xvitness^  or  from  circumstance  on 
the  evidence  of  more  than  one.     Unless  the  code  is  so  ameli- 
orated, in  this  particular,  it  is  more  sanguinary  than  €ven  the 
Jewish  law;    for  the  lesser  degree  of  evidence   being  suffi- 
cient to  convict,  makes  the  law  more  sanguinary.     Neverthe- 
less this  is  under  the  christian  dispensation^  which  has  been 
considered  as  softening  the  rigour  of  the  Mosaic  precepts  in 
many  instances. 

It  is  not  my  meaning  to  suggest  an  alteration  of  the  laW 
in  regard  to  circumstantial  evidence  being  sufficient  to  con- 
vict ;  for  circumstance  often  speaks  stronger  than  words  ;  and 
there  could  be  no  security  from  assassination,  unless  the  law 
were  so ;  but  it  will  be  a  consideration  for  the  doctrine  of 
continual  reprieve  which  I  advocate  ;  as  on  a  conviction  from 
circumstantial  evidence,  if  providence  should  at  any  time, 
bring  to  light  the  innocence  of  one  condemned,  as  has  some- 
times happened,  it  might  not  have  been  altogether  out  of  the 
power  of  the  society  to  relieve  his  person  from  confnement; 
and  his  name  from  infamy. 

But  the  restraining  the  malefactor  from  doing  hurt,  as  to 
future  time,  in  his  own  person,  is  not  the  only  object  of  pun- 
ishment. The  example  to  others  will  be  a  preservative  against 
what  they  may  do.  This  will  bring  it  to  the  question; 
which  is  most  likely  to  affect,  the  carting  to  the  gallows,  or 
to  the  place  of  hard  labour  and  confinement  for  life.     I  do 


Law  Miscellanies.  .  S43 

not  take  it  there  would  be  much  difference  as  to  the  effect. 
For  I  count  but  little  on  the  effect  o£  a.  present  terroryhav/e- 
ver  shocking  the  spectacle.  The  best  means  of  preventing 
the  catastrophe,  will  be  found  in  restraining  the  passions  by 
a  useful  occupation,  and  impressing  moral  and  religious  in- 
struction on  the  mind.  Prcsstat  cautela  quam  medela.  In 
the  countries  of  Europe,  Britain  in  particular,  Avhere  the  ef- 
fect of  capital  punishment  has  been  tried  abundantly,  it  has 
not  been  effectual ;  not  more  so  than  transportation  and  exile  ,; 
which  in  most  cases  has  been  substituted  for  it.  We  have 
no  Botany-bay  to  which  we  can  transport ;  but  we  can  ac- 
complish the  same  thing  by  confinement  and  hard  labour. 
What  then  would  be  the  amendment,  in  this  particular, 
which  I  would  propose  to  the  penal  code  ?  It  would  be,  that, 
on  conviction  for  murder  in  the  first  degree,  the  convict  shall 
undergo y<?r /{/^  the  same  punishment,  which  on  a  conviction 
for  murder  in  the  second  degree,  he  shall  be  sentenced  to 
undergo  for  years ;  the  time  specified  in  the  act  for  the  ame- 
lioration of  the  penal  code  of  the  22d  April,  1794.  This 
will  be  imprisonment  at  hard  labour  for  life  ;  and  death  incase- 
of  an  escape. 


IV  Black.  Com.  286. 

The  following  observations  are  an  extract  from  a  publica- 
tiojj,  at  the  time  certain  judges  of  the  supreme  court  were 
impeached  for  the  alleged  misdemeanor  of  enforcing  a  pro- 
cess of  contempt  for  a  cojistructive  trespass^  in  the  case  of  a 
certain  Passmore.  The  judges  were  acquitted;  but  by  an 
act  of  assembly,  3d  Ap.  1809;  and  extended  4th  Feb.  1812,  the 
power  of  the  judges  to  issue  attachments,  and  punish  in  the 
case  o(  constructive  contempts  before  alluded  to,  is  taken  away. 
This  is  precisely  one  object  which  I  had  in  view  in  these  ob- 
servations published  subsequently  to  the  acquittal.  But  it  is 
what  it  behoved  the  legislature  to  have  done  before  the  impeach- 
ment instituted,  unless  it  had  been  supposed  an  abuse  of  the 


244  Law  Miscellanies. 

power  in  the  particular  case.  And  I  will  not  say  that  it  was 
not  an  abuse.  For  the  great  question  in  Passmore's  case, 
was,  whether,  at  the  time,  there  was  a  suit  depending^  having 
Ijcen  out  of  court  and  before  referees.  But  it  was  true,  it 
might  come  back,  and  be  before  a  jury ^  However  this  was 
the  onhj  hock  in  the  case,  and  if  all  had  been  waived  but  this, 
something  solid  might  have  been  advanced  in  the  prosecu- 
tion. For  the  doctrine  of  a  constructive  contempt  for  a  pub- 
lication respecting  a  suit  in  court,  had  been  expressly  recog- 
nized as  the  law  of  Pennsylvania,  in  Oswald's  case,  1  Dal. 
319.  I  will  not  enter  into  the  question  whether  the  doctrine 
©f  constructive  contempts  was  properly  applied  under  a  re- 
publican government.  But  this  I  will  say,  that,  after  the  re- 
cognition the  courts  had  given  it  in  this  state,  even  after  the 
adoption  of  the  constitution  of  ITTG,  it  was  competent  only 
to  the  legislature  to  restrict  it,  as  by  the  act  alluded  to^  has 
been  done. 

I  do  not  enter  into  the  cjuestion  I  have  said,  whether  the 
suit  in  Passmore's  case,  being  before  referees,  could  be 
said  to  be  depending,  as  it  might  come  back  to  court,  but  I 
take  it  that  for  this  reason  it  could  not  be  said  to  he  terminated ; 
but  this  was  the  only  point  in  the  case.  Yet  I  think  it  was 
not  judicious  nor  necessary  to  have  taken  it  up  as  a  contempt, 
but  to  have  left  it  to  an  indictment,  as  meriting  peculiar  and 
exemplary  punishment ;  a  libel,  a  challenge,  and  a  posting, 
required  a  heavier  proceeding  of  the  law. 

The  public  mind  could  not  understand  why  it  should  be 
called  a  contempt  of  the  court,  what  was  a  contempt  of  laro 
only^  and  nothing  in  face  of  the  court  had  taken  place.  It 
was  with  a  view  to  this  that  I  published  the  following  obser- 
vations, explaining  the  reasons  on  which  the  common  law 
was  founded  in  this  particular. 

To  explain  the  meaning  and  effect  of  a  consequential  con- 
tempt. For  it  is  a  thing-  buried  in  obscurity  by  the  very  phrase  that 
is  used  to  express  it.  A  contempt  of  the  court  !  One  would  sup- 
pose that  it  can  mean  only,  treating  the  court  with  contempt. 
That  is  the  meaning  of  what  is  called  the  direct  contempt ;  which, 
is  "an  open  insult  and  resistance  to  the  pov/ers  of  the  court,  or 


Law  Miscellanies,  245 

the  persons  of  the  judges  who  preside  there."  4  Black.  283. 
liut  there  is  what  is  called  the  consequential  contemfit^  and  which 
is  but  constructively  a  contempt,  and  does  not  mean  a  disrespect 
of  the  court,  but  of  the  law.  The  court  which  administers  the  law, 
is  put  by  a  figure  for  the  laiv  itself. 

It  is  the  technical  term,  the  word  contempt  that  misleads. 
It  is  not  the  court  that  is  despised.  Nor  do  tiiey  feel  it  as  such. 
It  is  the  law  ;  it  is  the  administration  of  justice  that  is  slighted. 
Common  sense  can  understand  this.  Tne  scripture  has  the  idea>- 
and  the  language  of  the  constructive  contempt.  "  He  that  despis- 
eth  you,  despiseth  me  ;  and  he  that  despiseth  me,  despiseth  him 
that  sent  me."  It  is  not  the  court  that  is  despised  ;  but  tlie  law 
which  they  are  bound  to  administer.  We  say  "  against  the  peace 
and  dignity  of  the  commonwealth,"  in  an  indictment ;  and  yet  the 
commonwealth,  that  is  the  body  of  the  people,  know  nothing  of 
the  myitter,  and  feel  neither  peace  nor  dignity  affected.  A  taU 
man,  which  in  the  old  language  means  a  strong  man,  impels 
another  with  his  foot  upon  what  are  called  the  posteriors.  The 
commonwealth,  in  fact,  that  is  the  body  of  the  people,  never  hear 
of  it,  or  take  any  heed  of  the  consequences  ;  nevertheless  the  law 
pursues,  and  punishes  in  the  natne  of  the  commonwealth. 

But  a  principal  of  these  contempts,  is  an  interference  with  a 
case  defiending  in  the  courts  of  justice.  It  is  the  policy  of  the 
law  to  provide  against  this,  by  giving  the  suitor  a  right  to  call  upon 
the  court,  for  a  summary  interference  to  restrain  it. 

But  why  not  turn  the  matter  over  to  a  jury;  and  let  them  in 
the  first  instance  find  a  bill  ?  I  grant  that  where  the  libel  is  upon  the 
court  itself,  it  might  be  prudent,  and  would  answer  the  end  as  well, 
to  let  the  fact  come  forward  established  in  that  way.  But  where 
the  cause  in  court  is  affected  ;  where  any  blemish  is  thrown  upon 
that  while  it  is  depending  ;  the  right  of  a  third  person  intervenes ; 
the  right  of  the  suitor  who  calls  upon  the  court  to  interfere  by  a 
summary  firocceding.  Can  the  court  refuse  in  this  case  ?  "  I  call 
upon  you.  Messieurs  Judges,  for  protection ;  for  redress ;  you 
have  the  power;  it  \%the  law  of  the  la?id.  You  arc  sworn  to  dis- 
pense the  law  ;  it  is  your  duty.  I  demand  my  right.  My  case 
sliall  be  considered  pure  until  it  is  determined  otherwise  by  a  final 
fiearing  and  decision.  Will  you  tempt  me  to  break  the  peace ; 
to  murder  this  man  that  has  attacked  my  interest  and  my  honour, 
by  his  publication,  relative  to  the  controversy  that  is  in  law  between 
us.     If  you  withhold  the.  summary  redress,  which  the  law  gives. 


246  Law  Miscellanies. 

you  tempt  mo  to  break  the  peace ;  and  his  blood  be  upon  your 
heads.  Shall  I  lie  by,  and  let  the  imputation  rest  upon  my  cause, 
or  affect  the  decision,  and  take  my  chance  of  a  circuitous  prosecu- 
tion, when  the  law  gives  me  an  immediate  protection,  in  the  shape 
of  supporting  your  dignity  i  I  have  a  right  in  the  power  which  you 
possess  ;  and  I  call  for  the  exercise  of  that  power." 

This  is  called  the  power  of  the  court ;  but  it  is  founded  upon 
the  right  of  the  citizen.  It  is  the  duty  of  the  court  to  proceed  in 
this  way,  when  called  upon ;  because  the  suitor  has  the  election  of 
the  proceeding,  by  calling  on  the  court ;  or  by  indictment  for  the 
libel. 

But  under  an  attachment,  you  call  upon  a  party  to  say  whether 
he  is  not  the  author  of  the  writing.  That  is  against  a  principle  of 
the  comirion  law  ;  no  one  is  bound  to  accuse  himself ;  and  by  a 
clause  of  the  constit\ition,  no  one  is  compellable  "  to  give  evi- 
dence against  himself."  But  the  parts  of  the  law  must  be  taken 
together:  exceptions  subject  to  the  general  rules.  The  proceed- 
ing by  attachment,  and  compelling  to  answer  on  interrogatories 
put,  existed  under  the  common  law,  whose  maxim  it  was,  "no 
one  is  bound  to  accuse  himself."  It  is  a  special  case  out  of  the 
general  principle  :  and  there  is  good  reason  for  the  exception. 
But  whether  reason,  or  not,  the  exception  is  as  old  as  the  princi- 
ple. For  this  proceeding,  and  such  interrogation  is  of  immemo- 
rial usage;  it  is  as  old  as  the  constitution  of  the  courts  themselves. 
If  our  constitution  had  meant  to  do  away  this  exception,  it  would 
have  voted  it  in  express  terms ;  more  especially  as  it  had  been  ex- 
ercised by  the  courts  before  the  formation  of  the  constitution  ;  apd 
by  implication  recognized  by  the  legislature  itself,  in  the  case  of 
Oswald,  taken  up  by  the  house.  But  the  constitution  gives  the 
coilrts,  ^  the  powers  usually  exercised."  This  power  was  usually 
exercised,  and  therefore  it  is  given. 

But  there  is  reason  for  it,  independent  of  law,  and  constitution. 
The  administration  of  justice  requires  it.  How  can  I  fix  a  libel  on 
the  author  ?  The  presumption  is,  that  my  adversary  hi  the  cause 
depending,  is  the  author  of  the  writing  thaX.  affects  the  merits  of  it^ 
On  this  presumption  the  law  gives  me  a  right  to  call  upon  him. 
Who  else  can  be  supposed  to  interfere  but  my  adversary  ;  or  some 
one  with  his  privity  ?  The  necessity  of  the  case  justifies  this  ex- 
ception to  the  general  rule.  He  may  go  on  behind  the  scene  and 
prejudice  the  public  mind  against  me  and  my  cause,  and  leave  me 
to  my  redress  afterwards.     The  law  will  not  allow  this.     If  it  is 


Law  MiscELLAKiEfc.  247 

not  a  principle  of  the  law,  it  ought  to  be  a  principle.  But  it  is  a 
principle  as  old  as  our  Saxon  ancestry,  from  whom  the  trial  by  ju- 
ry is  derived.  It  is  coeval  with  the  trial  by  jury,  and  necessary  to 
its  preservation.  It  is  a  safeguard  of  the  trial  in  which  the  bulk  of 
the  people  are  especially  interested.  Before  they  give  it  up  let 
them  think.  Leave  it  to  the  suitors  in  court,  and  at  least  one  side 
will  always  object  to  it ;  probably  both.  All  that  wish  a  fair  and 
Unprejudiced  decision  will  object  to  it.  They  will  not  be  satisfied 
with  being  turned  round  to  an  indictment,  and  the  slow  process  of 
a  jury  trial  to  establish  the  fact  of  the  libel.  But  they  will  wish 
more,  that  the  party  interested,  shall  be  purged  on  his  oath,  as  to 
his  agency  in  tne  publication.  In  this  case,  they  have  the  consci- 
ence of  tne  party  to  establish  the  guilt.  And  the  looking  forward 
to  him,  will  lessen  his  hope  o( eecafiing  detection.  It  is  a  great  pri' 
vilcge  to  an  honest  man.     It  is  the  rogue  only  that  needs  fear  it. 

But  though  the  bare  circumstance  of  being  a  party  to  the  suit 
depending,  may  found  such  presumfition  of  being  the  author  of  the 
writing,  as  will  justify  the  calling  on  the  party  to  answer,  by  a  rule  to 
shew  cause  why  an  attachment  should  not  issue,  yet  it  is  never  done, 
and  perhaps  ought  not  to  be  done,  without  an  affidavit  of  some  fact 
to  lay  a  ground  for  the  motion.  This  in  the  case  of  a  third  person, 
is  absolutely  necessary  ;  for  no  presumption  of  the  nature  already 
Stated,  can  exist. 

"  But  the  negative  of  the  party  to  the  suit  depending,  or  of  a  third 
person,  on  oath,  dissolves  the  rule,  and  there  is  an  end  of  the  sum- 
mary interposition.  This  is  a  firiviiege  fieculiar  to  this  special  firQJ 
ceeding  :  and  not  possessed  in  the  case  of  an  indictment  by  a.  grand 
jury.  It  softens  the  extraordinary  remedy,  by  suffering  a  man  /o 
be  a  ivitneesfor  himself;  and  ivhat  is  mor<;  ;  taking  loltat  he  sort/*, 
to  be  the  truih-^and  so  far  as  respect  the  attachinenty  incontrovert- 
ible. 

Butif  this  power,  though  founded  on  law,  and  the  constitution, 
should  be  deemed  contrary  to  the  spirit  of  liberty,  or  good  policy , 
a  clause  of  a  few  lines,  can  put  an  end  lo  it :  viz.  "  That  in  the 
case  of  consequential  contempts.,  by  interference  in  a  cause  depend- 
ing, the  proceeding  shall  be  by  indictment,  in  the  first  instance  ; 
and  in  no  other  way."  It  will  relieve  the  court  from  a  burden,  which 
they  conceive  a  duty  ;  and  experience  will  determine  whether  the 
alteration  of  the  common  law  in  this  particular  be  an  evil  or  a 
good. 


248  Law  Miscellanies. 

But  of  what  use  can  a  rogue's  oath  be  ?  He  is  not  supposed  to 
have  a  conscience.  But  he  can  look  to  an  indictment  for  perjury. 
But  suppose  he  did  not  know,  or  at  least  think  there  was  a  cause 
depending ;  and  that  he  did  not  mean  a  contempt.  It  is  not  what 
he  thought,  or  what  he  meant ;  but  was  there  a  case  defiendingy  and 
what  did  he  do  ? 

But  at  this  rate  you  abridge  the  liberty  of  sp.eech,  and  of  writ' 
mg  ;  you  make  it  dangerous  to  canvass  a  general  principle  of  law  ; 
for  some  suit  may  be  depending  on  which  it  may  turn.  The  law 
goes  no  such  length.  I  am  at  liberty  to  canvass  a  general  princi- 
ple. It  is  a  consideration  of  the  particular  case  from  which  I  am 
excluded  ;  or  the  application  of  the  facts  to  the  law.  The  legality 
of  general  warrants  was  abundantly  canvassed,  at  the  time  Wilkes 
was  the  subject  of  one  of  them ;  and  no  exception  taken  to  the  free* 
dom  of  the  press  in  this  particular.  The  constitutionality  of  the 
sedition  law  of  the  United  States,  was  brought  into  view  pending 
indictments  under  it ;  and  no  exception.  I  am  canvassing  a  gene- 
ral principle  at  present ;  and  there  are  impeachments  depending 
where  it  may  be  brought  into  view.  That  is  nothing ;  for  it  is  the 
facts  of  the  case  that  will  be  ultimately  considered. 

The  courts  may  have  this  power,  and  yet  may  exercise  it  with 
fiartiality^  ofifiression^  and  tyranny.  This  will  render  the  exercise 
of  any  flower  impeachable.  For  this  the  accused  must  put  them- 
selves upon  the  country ;  or  if  clearly  and  palpably,  a  court  have 
no  such  power  at  c//,  and  yet  exercise  it,  it  is  a  misdemeanor.  For 
error  in  jvidgment  where  there  is  a  right  to  judge,  is  not  impeach- 
able ;  but  the  exercise  of  a  power  unknown  to  the  law,  even  though 
unaccompanied  with  express  malice,  is  impeachable,  and  will  sub- 
ject to  a  reprimand^  i:fc.  according  to  the  circumstances.  The 
rights  of  the  citizen  are  thus  secured;  and  far  be  it  from  me  to 
abridge  them,  even  in  idea,  by  any  reasoning  I  may  offer. 


NOTES 

ON  smith's  edition  of  the 

LAWS  OF  PENNSYLVANIA. 


BY  an  act  of  Assembly  of  28  Feb.  1810,  provision  is  made 
for  a  publication  of  the  laws,  to  be  examined  and  approved 
by  the  judges  of  the  supreme  court ^  and  the  Governor  is  au- 
thorised to  appoint  some  fit  person  inter  alia  "  to  insert  the 
notes  of  judicial  decisions.''''  To  what  must  the  examination, 
and  approbation  of  the  supreme  court  be  considered  as  ex- 
tending? It  could  not  respect  type,  press-work,  or  fidelity  of 
the  publication,  compared  with  the  enrolled  acts  ;  or  even  the 
arrangement  of  the  laws  ;  but  what  was  immediately  within 
the  province  of  their  judgment,  the  insertion  of  the  notes  of 
judicial  decisions.  Nor  could  this  examinatio7i  and  approbation 
be  considered  as  vouching  for  the  correctness  of  the  deci- 
sions ;  but,  only  at  most,  for  the  correct  statement  of  these 
decisions.  Nor  even  that  indeed,  for  no  record  is  kept  of  deci- 
*Z57Z5,  but  only  of  causes  in  which  such  decisions  are  made. 
And  this,  without  recurring  to  the  prothonotary's  dockets, 
was  not  in  their  power.  It  would  require  a  labour  of  years 
to  ascertain  all  these.  But  as  to  the  reasons  of  the  decisions 
in  a  particular  case,  this  could  only  be  collected  from  the 
notes  of  judges  ;  or  others  who  had  taken  notes.  And  these 
notes  could  not  always  be  considered  as  correctly  taken, 
unless  noted  by  the  judge  himself  at  the  time  he  delivered 
his  opinion.  Nor  had  any  one  judge  the  notes  of  other 
judges  in  his  power  ;  much  less,  of  those  taken  by  the  coun- 
sel at  the  bar ;  or,  by  others.  And  what  is  more,  in  the 
case  of  judges  who  had  set  on  the  bench  before  him, 
and   were   deceased,  unless   from  papers  left  behind  them, 

I  I 


25(5  Law  Miscellanies. 

which  might,  or  might  not  be  furnished,  there  was  no  oppor- 
tunity of  information.  The  notes  of  judges,  or  of  others, 
is  private  property  ;  and  even  an  act  of  assembly  could  not 
enforce  the  procuring  them. 

But  an  impracticable  consequence  must  follow  if  their 
examination,  and  approbation  was  to  involve  a  consideration 
of  the  laxu  of  the  decisions.  For  that  would  require  of 
them  with  the  reasons  given,  much  time,  and  be  inconsistent 
with  the  prescribed  official  attendance,  and  necessary  hear- 
ing and  adjudication  of  causes  in  court. 

A  great  mischief  would  also  follow,  that  these  decisions 
shovdd  be  sanctioned,   or  disapproved   without  argument  in  • 
the  particular  point  of  law ^  when  it  comes  again  to  be  consi- 
dered.    For  though  the   stare  decisis  is  a  salutary  maxim  ; 
and  the  non  ita  refert,  may   be   taken  into  view  ;  yet   every 
party,  in  his  particular  case,  has  a  right  to  coJitest  his  decisioti ; 
for  decision  is  hit  the  evidence  of  law  ;  and  the  judge  himself 
has  a  right  to  depart  from  the  decision  of  others  ;  and,  even 
from  his  own,  in  a  new  case.     It  cannot  therefore  be  suppos- 
ed that  the  legislature  in  imposing  the  duty  could   mean  to 
forestnl  the  opinions  of  the  identical  judges  at  a  future  day, 
by  such  a  revision.     They  could  mean,  only  ;  and    certainly 
did  mean  no  more,  than  to  call   for  some  judgment   in  bulk 
upon  the  work,  as  to  the  reasonable   industry,  and  pains  be- 
stowed  in  collecting  decisions.     Whether  these  were  right,  or 
wrong,  they  could  not  be  considered  as  expressing  an  opinion. 
Nay,  on  the  contrary,  if  decisions  in  the  individual  opinioti  of 
any  of  them  ;  or  of  the  whole   erroneous,  were  left   out,  it 
would  be  a  reason  for  refusing  their  approbation.     The  pub- 
lic had  it  in  view  ;  and  had  a  right  to  know,  as  far  as  possi- 
ble what  decisions  had  taketl  place.     This  doubtless,   with  a 
view  to  provide  by  law  Avhere  they  might  think  it  necessary 
to  interpose.     This.,  by  acts  declaratory  of  what  they  conceiv- 
ed the  law  to  have  betn,  or  explanatory  of  acts  of  the  legisla- 
ture,  where  the   conslruction  put  upon  them  by  the   courts, 
appeared,  as  thev  might  think,  to  be  erroneous  :  or,  to  supply 
or  amer.d  where  there  appeared    to  hr   a.  defect   in   the  acts 
themselves. 


Law  Miscellanies.  251 

Nevertheless,  though  on  my  part  it  was  considered,  and 
as  it  appears  would  seem  to  have  been  considered  by  the 
other  judges,  as  extending  to  nothing  more  than  as  I  have 
stated;  yet  I  did  not  consider  my  self  as  precluded  from  giv- 
ing an  opinion,  if  1  chose  to  do  it,  on  any  decision  that  had 
been  made.  And  I  cannot  say  that  there  are  not  so?ne  of 
which  I  do  not  approve.  From  some  of  them  indeed,  I 
have  dissented  in  a  judicial  capacity  ;  and  in  most  if  not  in  all 
of  these  /  stick  to  my  opinion.  But  not  in  any  case,  where 
I  think  it  wrong.  Because  I  am  more  covetous  of  the  praise 
of  candour  in  retracting  error,  than  even  of  correct  judgment^ 
in  the  first  instance, 

A  few  of  the  notes  which  I  made  in  reviewing  this  pub- 
lication, which  deserves  not  a  little  credit,  for  its  labour  of 
industry,  and  collection  of  decisions,  I  take  the  liberty  of  sub- 
joining here  :  thev  will  be  but  few  of  which  I  shall  take  no- 
tice. These  chiefly  which  respect  the  law  of  legal  tenure  in 
Pennsvlvania. 


SINCE  writing  the  above  it  occurs  to  me  to  subjoin  a 
few  observations  more  particularly  upon  the  task  enjoined 
upon  the  jud'^es  of  the  supreme  court,  in  examining  and  ap- 
proving the  edition  of  the  laws,  v/ith  notes  of  decisions  as 
prescribed  by  the  act  28  Feb.  1810.  It  would  be  a  reflection 
upon  the  understanding  of  the  legislature,  and  an  indecency 
to  suppose  for  a  moment,  that  they  could  mean  that  the  judges 
were  to  approve  of  the  decisions  reported^  but  only  of  the  re- 
port  of  the  decisions.  For  it  could  not  but  be  considered 
as  much  within  the  view  of  the  legislature  to  have  erroneous 
decisions  reported  as  those  which  the  judges  might  think 
correct.  For  the  object  of  the  legislature  must  have  been, 
to  see  what  the  decisions  were  ;  whether  erroneous  or  correct ; 
with  a  view  to  interpose,  where  it  might  appear  to  them, 
their  own  acts  required  explanation,  or  amendment.  Decla- 
ratory lav/s  settle  the  intention  of  the  legislature.  These 
decisions  so  reported  will  be  read  in  court,  but  no  greater 


252  Law  Miscellanies. 

•weight  will  be  attached  to  them^  than  their  own  intrinsic  rea- 
son will  seem  to  justify.  Chief  justice  Shippen,  expressed 
the  idea  to  me  that  decisions  merely  nisi  prius^  and  these 
constitute  a  great  part,  had  better  be  burnt ;  because  they 
might  mislead.  But  as  the  legislature  have  called  for  them 
they  could  not  consistent  with  duty  be  omitted,  and  the  judges 
could  not  with  delicacy  but  approve  the  reporting,  because 
the  keeping  any  of  them  back,  would  be  contrary  to  duty  in 
the  reporter,  and  the  giving  countenance  to  this  by  the  judges, 
would  be  a  participation  in  the  fraud.  So  far  from  approv- 
ing these  decisions  in  any  other  view  of  the  matter,  I  do  en- 
tirely disapprove  of  ynany  of  them;  in  other  words  dissent 
from  them  ;  and  especially  such  as  have  a  relation  to  the 
lands  within  the  purchase  of  1768  ;  and  those  lying  west  of 
the  Allegheny  river  under  the  act  of  3  April,  1792. 

In  contemplation  of  law  a  nisi  prius  decision  not  appeal- 
ed from  by  a  motion  for  anew  trial,  acquires  in  some  degree 
the  force  of  a  decision  of  the  court  above  ;  but  it  can  only 
be  in  a  degree ;  for  the  court  sitting  above  is  at  a  distance  ; 
and  it  becomes  a  matter  of  expence  to  appeal.  In  Penn- 
sylvania, where  until  of  a  late  period,  the  court  in  bank  sat 
in  the  city  of  Philadelphia  at  the  distance  of  many  hundred 
miles  from  the  county  in  which  the  nisi  prius  trial  was,  it  was 
a  matter  of  increased  expence  to  prosecute  an  appeal;  because 
fresh  counsel  must  be  employed  in  that  case,  the  counsel  at 
nisi  prius  not  attending,  as  they  could  not  with  any  possible 
convenience  at  such  a  distance.  And  even  the  fresh  counsel 
that  might  be  employed  at  the  then  seat  of  government  could 
not  always  be  well  acquainted  with  the  local  laws  of  the  in- 
terior, so  as  to  do  the  case  equal  justice  with  those  even  of  in- 
ferior talents  that  had  more  knowledge  of  the  acts  of  assembly 
applying  to  rights  in  a  particular  quarter;  and  this,  from  a 
more  careful  study  of  them.  I  hav^e  known  the  poverty  of  a 
defendant,  in  many  cases,  to  operate  as  a  bar  against  an  ap- 
peal; so  that  whatever  might  be  the  effect  of  not  appealing 
from  a  nisi  prius  decision  in  contemplation  of  law,  it  in  fact 
amounted  to  nothing,  so  far  as  respected  the  decisions  In  the 
counties  rev.i'Ae  from  the  sitting  in  Bank. 


Law  Miscellanies.  2o3 

But,  it  was  discouraging  in  any  case  to  appeal  where  two 
of  the  judges  sitting  at  nisi  prius,  left  but  two  others  in  the 
supreme  court  to  whom  the  appeal  could  be  made  ;  and  the 
two  sitting  at  nisi  prius,  had  in  their  turns  the  revision  of 
the  decisions  of  the  two  behind,  who  in  the  mean  time  were 
on  the  circuit  elsewhere,  and  thence  could  not  be  supposed 
in  fact,  whatever  it  might  be  in  c»ntemplation  of  law,  to 
have  a  leaning  to  support  what  the  other  two  had  done ; 
not  to  judge  severely  "  lest  they  themselves  should  be  judg- 
ed."    In  a  court  so  constituted,  an  appeal  was  a  mockery. 

It  was  an  appeal,  I  will  not  say  from  Philip  drunk  to 
Philip  sober,  for  I  mean  no  such  reflection ;  but  it  was  al- 
most the  same  thing  as  an  appeal  yro7?z  Philip  to  Philip. 

I  admit  that  during  a  period  there  was  what  was  called  a 
court  of  appeals,  not  independent  of  the  supreme  court,  but 
with  a  simul  cum  of  other  characters.  But  this  court  was 
holden  at  the  seat  of  government,  and  it  was  a  matter  of  still 
greater  expence  after  a  decision  on  the  appeal,  in  the  supreme 
court,  to  pursue  it  farther  to  a  hearing  in  the  last  resort. 
The  terms  holden  as  they  now  are  'm  districts^  and  by  judges 
who  have  not  sat  at  nisi  prius,  or  have  to  review  the  deci- 
sions of  each  other,  with  regard  to  causes  in  the  counties, 
is  a  great  improvement  on  the  system. 

Thus  much  I  have  thought  is  necessary  to  say,  with  re- 
gard to  the  extent  of  that  approbation  which  the  judges  of 
the  supreme  court  may  be  considered  as  having  given  to  the 
notes  of  decisions,  as  reported  in  pursuance  of  the  act  of  the 
legislature. 


Under  the  act  of  the  1st  Ap.  1784,  in  the  edition  of  the 
laws  which  the  judges  were  to  examine  and  approve,  we  have 
a  note  of  much  utility  tracing  the  history  of  land  titles  in 
Pennsylvania.  In  this  note  a  concise  and  clear  view  is  given 
of  the  controversy  of  Penn  with  Lord  Baltimore,  respecting 
the  boundaries  of  their  respective  grants. 


:iS^  Law  Miscellanies. 

Bat  I  hav<e  overlooked,  or  there  is  not  comprehended  in 
it,  an  account  of  the  controversy  of  Pcnn  with  Virginia,  to 
which  dispute  the  comrnonweahh  succeeded  in  the  place;  for 
it  had  not  been  compromised  under  the  proprietary  govern- 
ment. The  ground  of  controversy  with  Baltimore  whose 
grant  was  called  Maryland,  respected  a  degree  of  latitude; 
of  which  under  the  agreement  with  Penn  half  a  degree  was 
given  up ;  but  the  Maryland  boundary  running  west,  termi- 
nated before  the  extent  of  five  degrees  of  longitude  to  which 
Penn  was  entitled  to  go.  He  had  a  right  therefore  to  run 
south  at  the  extremity  of  the  Maryland  boundary,  a  degree. 
Then  a  line  due  west  to  the  extremity  of  the  fifth  degree  of 
longitude  from  the  river  Delaware.  There  was  therefore  in 
dispute  with  Virginia,  a  degree  of  latitude,  for  the  distance 
of  23  miles  due  west,  after  passing  the  charter  boundary  of 
Maryland. 

But  independent  of  this,  Pennsylvania  claimed  a  line 
north  parallel  with  the  Delavvare,  but  not  according  to  the 
curves  of  that  river.  Virginia  claimed  according  to  the 
curves,  the  sinuosities  of  which  river  would  throw  consi- 
derable bays  in  many  parts  into  Virginia.  Office  rights  had 
been  issued  both  from  Virginia  and  Pennsylvania,  and  had 
l)een  laid  upon  this  ground,  that  according  to  the  claims  of 
each  respectively,  settlements  also  had  been  made  under  the 
laws,  or  usages  of  both. 

By  an  act  of  first  April,  1784,  an  agreement  previously 
made,  containing  a  compromise  of  the  respective  claims,  is 
ratified  and  confirmed  by  the  state  of  Pennsylvania,  viz. 
"  that  the  line  commonly  called  Mason  and  Dixon's,  be  ex- 
tended due  west  five  degrees  longitude,  to  be  computed 
from  the  river  Delaware,  for  the  southern  boundary  of  Penn- 
sylvania, and  that  a  meridian  drawn  from  the  western  extre- 
mity thereof  to  the  northern  limits  of  the  said  states  respec- 
tively, be  the  western  boundary  of  Pennsylvania,  for  ever, 
on  condition  that  the  private  property  and  rights  of  all  per- 
sons acquired  under,  founded  on,  or  recognized  by,  the  laws 
of  either  country  previous  to  the  date  hereof,  be  saved  and 
confirmed  to  them,  although  they  should  be  found  to  fall 


Law  Miscellanies.  255 

within  the  other,  and  that  in  the  decision  of  disputes  there- 
on, preference  shall  be  given  to  the  elder  or  prior  right,  which- 
ever of  the  said  states  the  same  shall  have  been  acquired  un- 
der, such  persons  paying  within  whose  boundary  their  lands 
shall  be  included,  the  same  purchase,  or  consideration  mo- 
ney which  would  have  been  due  from  the  state  under  which 
they  claimed  the  rights."  Such  are  the  material  conditions 
of  the  agreement,  and  ratification.  It  will  be  seen  from  the 
annexed  diagram  what  was  the  nature  of  the  dispute,  and 
*he  term  of  the  compromise  as  it  respects  boundary. 


256 


Law  Miscellanies. 


a  — c.  Line  due  north — of  compromise. 
a ....  0,  Boundaiy  claimed  by  Pennsylvania. 
0  0  0.  Curves  originally  claimed  by  Virginia. 
aa  e.  Mason's' and  Dixon's  line. 
a  aw.  Ceded  to  Virginia  under  agreement. 
ee  e.  River  Delaware. 


Law  Miscellanies.  257 

The  zig  zag  of  a  western  boundary,  parallel  with  the  me-  . 
anders  of  the  Delaware  on  the  east,  would  have  been  diffi- 
cult, or  impossible  to  ascertain,  with  mathematical  exactness. 
The  curve  consisting  of  irregular  arches  reducible  to  no  seg- 
ment of  the  sphere,  could  with  no  convenience^  at  least,  be 
traced  upon  the  ground  in  ascertaining  the  western  bounda- 
ry. What  would  justify  the  taking  the  chord  of  an  irregular 
arch,  would  warrant  that  for  which  Pennsylvania  contended, 
the  taking  the  chord  of  the  whole  curved  line  of  the  Delaware, 
connecting  the  two  extreme  points  of  the  north  and  south 
longitude.  That  is,  from  the  Delaware  at  the  place  of 
beginning  on  the  south  running  five  degrees  in  longitude, 
and  from  the  place  of  beginning  on  the  north  running 
the  same  distance  from  the  Delav/are,  and  connecting  their 
terminations  with  a  right  line.  This  would  seem  by  far  the 
most  likely  to  have  been  intended  in  the  grant  of  the  charter 
to  Penn.  It  is  totally  improbable  that  any  thing  else  could 
have  been  in  contemplation  in  designating  the  extent,  because 
the  carrying  it  into  effect  by  measurement,  would  have  been 
impracticable.  The  court  of  justice  would  have  put  a  con- 
struction on  a  writing  which  would  have  led  to  such  incon- 
venience, because  it  would  have  been  unreasonable,  if  not 
absurd.  The  claim  of  Virginia  would  therefore  appear  to 
me  not  to  have  been  well  founded.  This  independent  of  the 
principle  of  law,  that  every  thing  is  to  be  taken  most  strong- 
ly against  the  grantor.  And  the  jvhole  oj  the  so'il^  both  of  Vir- 
ginia and  Pennsylvania,  was  in  the  king  of  England  when  he 
granted  the  charter  to  Penn.  So  that  this  principle  applied, 
and  bound  Virginia  as  to  the  right  of  soil  at  least,  if  it  did 
not  as  to  jurisdiction. 

By  the  compromise  Pennsylvania  obtained  the  jurisdic- 
tion, or  rather  the  claim  of  Virginia  was  withdrawn  so  far 
as  respected  this.  She  quieted  her  possession,  and  title  also  so 
far  as  respected  the  state  of  Virginia,  but  subject  to  rights 
»f  individuals  who  claimed  under  Virginia.  These  if  prior  to 
Pennsylvania  titles,  inust  come  in.  It  was  then  in  fact  ced- 
ing Me  r;^/;^?  of  individuals  under  Pennsylvania;  or  rather 
taking  them  awav  ;  for  the  courts   of  justice   boimd  bv  the 

K  K  ' 


25S  Law  Miscellanies. 

law  ratifying  the  agreement,  sustained  ejectments  under  Vir* 
ginia  claims  where  they  were  prior.  General  Washington 
after  the  peace  of  ir83,  instituted  ejectments,  and  succeeded 
in  recovering  under  a  prior  Virginia  claim,  a  large  tract  of 
country  containing  a  number  of  settled  plantations  which 
had  been  defended  and  cultivated  during  the  Indian  depre- 
dations upon  that  quarter,  at  the  expence  of  life  in  many  in- 
stances. It  was  sufficiently  distressing  to  be  obliged  to  leave 
their  cultivated  fields,  meadows,  orchards,  and  buildings. 
The  general  did  not  offer  to  make  compensation  for  these. 
Nor  in  strict  law,  was  he  bound  to  do  so.  He  could  not  be 
considered  as  under  more  than  an  imperfect  obligation.  It  is- 
possible  he  might  have  thought  of  this,  had  he  not  taken  it 
for  granted,  as  he  had  a  right  to  do,  that  the  state  of  Penn- 
sylvania who  had  taken  away  the  property  from  the  settlers, 
by  ceding  to  Virginia,  would  have  provided  a  compensation. 
This  by  strict  law  the  state  was  bound  to  do.  For  though 
the  ceding  the  jurisdiction  is  at  all  times  a  right  of  the  so- 
ciety; yet  the  exercise  of  the  doininium  emine7is^  could  not, 
under  the  constitution  of  1776,  or  under  the  present,  be  jus- 
tifiable without  providing  a  compensation.  This  was  the 
case  some  years  afterwards  in  the  adjustment  of  the  Wyo- 
ming controversy,  with  Connecticut.  But  nothing  of  this 
was  heard  of  with  regard  to  lands  taken  away  by  the  Virginia 
claims  in  this  disputed  territory.  And  at  this  late  period, 
it  is  not  probable  that  we  shall  hear  more  of  it.  It  remain^ 
now,  not  a  matter  of  legal  discussion,  but  of  history. 


"  Whether  a  sale  of  defendant's  lands,  under  a  younger  judg- 
"  ment,  affects  the  lien  of  an  older  one,  rctnains  undecided."  1 
Smith.  68,  referring  to  a  dictum  of  Judge  Yates,  2  Bin.  218. 

I  am  not  able  to  name  the  case,  nor  can  I  say  with  cer-. 
tainty  that  it  became  necessary  to  decide  the  case  expresshj 
on  this  point,  and  that  the  opinion  expressed  Was  not  adic- 
■ium  ©f  the  court,  and  what  might  be  called  in  strictness^  ex- 


Law  Miscellanies.  25^ 

tra-judicial.  But  this  I  well  recollect  that  C.  J.  Shippen, 
Yeates,  Smith  and  myself  on  the  bench,  it  was  expressed, 
Yeates,  as  I  understood  it,  of  a  contrary  way  of  thinking, 
that  the  sale  of  a  defendant's  lands  under  a  younger  judgment, 
could  not  affect  the  lien  of  an  older  one.  It  might  have  been 
perhaps  the  case  of  a  mortgage  that  brought  the  principle 
into  view.  But  if  it  had  never  been  decided,  can  there  be 
any  doubt  about  it  ? 

A  gives  a  pledge  to  B  ;  say  a  piece  of  plate.  Can  A  sell- 
ing that  pledge,  give  the  purchaser  a  right  to  talfe  it,  or  do 
more  than  put  him  in  his  place  and  enable  him  to  take  it 
paying  B  ?  What  has  B  to  do  with  A  selling  the  pledge,  or 
C  purchasing  it  ?  It  cannot  change  his  interest  in  the  thing- 
pledged.  The  money  advanced  still  remains  due  upon  it. 
Will  it  avail  the  purchaser  C  to  say  the  pledge  was  sold  to 
me  for  60  nntch^  and  I  M'ill  pay  you  that  ?  Might  not  B  say, 
I  will  have  the  whole  of  the  money  advanced  upon  it,  or  my 
interest  in  the  pledge  must  remain. 

If  a  judgment  is  alien,  must  not  the  land  liened^  or  tied ^ 
remain  bound  until  the  debt  for  which  it  is  bound  be  dis- 
charged ?  Can  it  make  any  diflPtrence  whether  it  is  land  that 
is  pledged,  or  a  chattel  ?  I  cannot  comprehend  how  the  idea 
could  have  arisen,  that  it  makes  any  difference.  If  land  is 
pledged  under  a  mortgage,  that  mortgage  must  be  satisfied, 
before  any  other  can  come  in.  What  is  it  to  the  first  mort- 
gagee^ whether  the  land  is  sold  under  a  second  mortgage  or, 
xvhat  it  may  be  sold  for  under  a  second  mortgage  ?  He  is  safe, 
and  his  mortgage  must  be  paid  off,  before  the  purchaser  un- 
der a  second  mortgage  can  take  it  freed  from  the  encum- 
brance. What  is  the  difference  between  a  mortgage,  which 
is  a  specific  lien  upon  one  or  more  tracts^  and  a  judgment^ 
which  is  a  general  lien,  and  binds  what  lands  the  debtor  has 
at  the  time  of  the  judgment.  I  do  not  enter  into  the  ques- 
tion why  it  may  not  bi}id  lands  after  purchased  by  the  debtor. 
But  it  is  not  questioned  but  that  it  will  bind  all  the  lands  he 
has  at  the  time.  It  binds  as  perfectly  as  in  the  case  of  a  mort- 
gage of  a  single  tract.  The  only  difference  is  in  the  manner 
*ti foreclosure^  and  the  proceeding  to  a  sale.     I  think  it  pro-, 


260  Law  Miscellanies. 

bable  the  case  deckled  in  the  supreme  court  "was  that  of  a 
mortgage;  but  it  decides  the  principle;  and  if  land  sold 
under  a  second  mortgage,  for  less  than  the  mortgage  money 
on  the  first,  could  not  affect  the  right  of  the  first  to  have  it 
sold  again,  how  should  the  sale  under  a  younger  or  second 
judgment  affect?  It  may  have  iieen  the  case  of  a  mortgage 
that  was  decided  in  the  supreme  court,  but  the  principle 
went  the  whole  length ;  and  the  case  of  a  sale  under  a  younger 
judgment,  could  not  tiut  be  spoken  of,  and  considered  the  same. 
Who  ever  heard  of  a  sale  under  a  younger  mortgage,  cut- 
ting out  the  lien  of  a  prior?  There  must  have  been  something 
special  in  the  circumstances  of  the  case,  that  could  have  rais- 
ed the  question,  or  brought  it  before  the  court. 

The  purchaser  at  sheriff's  sale  takes  it  cum  onere  of  every 
encumbrance  by  the  debtor  prior  to  the  date  of  the  judgment 
on  which  the  sale  is  made.  It  is  his  business  to  look  into 
every  encumbrance,  and  the  sheriff  who  is  the  mere  agent  of 
the  law  in  selling  has  nothing  to  do  with  the  encumbrances. 
It  is  the  business  of  the  purchaser  to  examine  into  this,  and 
to  bidno  more  than  he  thinks  proper  to  g'ive,  taking  the  encum- 
brance into  vierv.  He  obeys  the  exigence  of  his  writ  and 
sells,  and  out  of  what  money  comes  to  his  hands  he  pays  off 
the  judgment  under  which  the  land  is  sold  if  so  much  is 
obtained,  and  the  surplus  to  the  debtor  as  directed  by  the 
act  of  assembly  in  the  case  of  chattels.  As  to  the  notion  of 
the  sheriff  being  liable  to  see  how  the  purchase  is  applied,  he 
has  nothing  to  do  with  it. 

Am  I  bound  who  am  a  judgment  creditor,  to  do  more 
than  to  watch  my  own  lien,  and  the  sale  under  it,  if  I  choose 
to  have  a  sale  made  ?  I  am  not  bound  to  attend  the  sale  un- 
der a  z/ozm^^r  judgment,  or  to  see  what  it  will  bring,  as  I 
cannot  be  affected  by  it.  It  is  the  younger  creditor  to  at- 
tend to  this,  knowing  that  his  judgment  cannot  come  in  un- 
til the  other  is  satisfied.  If  the  money  bid  will  not  amount 
to  what  will  discharge  the  prior  judgment,  or  will  amount 
to  no  more,  he  gets  nothing.  Unless  the  land  is  of  sufficient 
value  to  answer  prior  encumbrances,  the  purchaser  loses  by 
so  much.     This  is  a  doctrine  which  younger  judgment  cre» 


Law  Miscellanies.  261 

ditors,  or  purchasers  at  sheriff's  sale,  may  not  relish,  but 
the  injustice  and  inconvenience  of  having  the  law  otherwise 
understood  must  be  manifest.  A  judgment  creditor  at 
a  distance  may  have  his  lien  taken  from  him^  if  a  sale  under  a 
younger  judgment^  could  dissolve  it. 

It  will  be  said,  what  is  a  younger  judgment  creditor  to 
do  if  the  older  is  not  pressed  to  a  sale  ?  must  he  lie  by  until 
the  older  presses  ?  not  at  all.  If  he  thinks  that  the  land 
will  bring  more  than  'the  older  judgment,  he  can  proceed 
upon  the  younger,  and  purchase  himself;  or  some  one  else 
purchasing,  pay  off  the  older  judgment,  which  he  will  then 
have  a  right  to  do.  For  he  succeeds  to  the  place  of  the 
dettor  against  whom  the  judgment  was.  The  same  in  the 
case  of  a  mortgage.  He  has  then  the  equity  of  redemption 
in  him,  and  has  a  right  to  pay  off  the  first  mortgage,  and 
hold  the  land  discharged  of  the  mortgage.  The  whole  error 
lies  in  the  not  considering  as  it  ought  to  be  that  a  sale  by 
the  laxv  is  a  sale  by  the  debtor  himself:  and  he  can  make 
title  only  of  what  interest  remains  in  him;  and  this  is  what 
interest  remains  after  paying  off  all  encumbrances  prior* 

The  case  of  a  mortgage  is  precisely  the  same  with  that  of  a 
judgment  creditor  except  as  to  the  necessity  of  holding  an 
inquisition  to  C07idemn  the  lands ;  and  the  kind  of  writ,  the 
levari  facias  which  by  the  act  of  assembly  is  directed  to 
issue.  The  point  therefore  having  been  decided  in  the  su- 
preme court,  in  the  case  of  a  mortgage,  did  decide  the  prin- 
ciple that  a  sale  wider  a  younger  jitdgment,  cculd  not  affect 
the  lien  of  an  older  one. 


26*2  Law  Miscellanies. 

2  Smith's  Laws,  127. 

Plutnstead's  lessee  v.  Rudibach,  Westmoreland. 

The  defendant  offered  to  prove  that  his  father,  Christd'- 
pher  Rudibach,  settled  on  these  lands  before  the  Indian 
purchase,  in  consequence  of  a  military  permit  from  Colonel 
Boquet  which  he  alleged  was  lost  by  the  casualty  of  office  ;' 
but  that  his  uninterrupted  possession  since  his  death  w^.uld 
be  presumptive  evidence  thereof,  and  that  he  had  made  con- 
siderable improvements  thereon.  Defendant  had  obtained  a 
warrant  for  the  land,  December,  1784. 

The  evidence  was  excepted  to  and  overruled. 

I  disaprove  both  of  the  decision  and  the  reasons  of  the 
court. 

Lessee  of  Sherer  v.  Mc'Farland,  Westmoreland. 

I  disapprove  of  this  decision  and  the  reasons. 

Drinker's  lessee  v.  Hunter :  Northumberland  ;  I  disap* 
prove. 

Buchannan's  lessee  v.  Mc'Clure  :  Northumberland,  1808. 
My  dissent  appears,  1  Bin.  385.  And  totis  viribus,  I  con- 
tinue of  the  same  mind. 

Benoni  Dawson  v.  William  Laughlin ;  2  Smith,  207. 

A  recovery  cannot  be  hod  on  a  mere  settlement  rvithout  a 
survey.  I  say  it  can  :  shall  not  one  regain  by  law,  the  pos- 
session of  his  house  or  improved  ground,  without  a  survey? 

Lessee  of  Samuel  Flwalt  v.  Martha  Highlands;  Allegha- 
jjy.     2  Smith's  Laws,  208. 

I  was  of  counsel  in  this  case  for  Ewalt,  and  I  am  con- 
strained to  say  the  report  of  the  facts  is  not  correct.  And 
here  I  take  the  liberty  of  observing  that  no  report  of  any 
judge  can  import  absolute  verity.  It  is  not  :a  record^  though 
I  have  heard  a  judge  affect  to  call  it  so.  What  a  judge 
notes  upon  his  paper,  is  not  read  to  the  counsel  in  the  cause. 
They  have  no  opportunity  of  taking,  nor  have  any  right,  to 
take  exception  to  the  statement  at  the  time.  It  is  a  matter 
Avith  the  judge  himself  and  is  his  own  niemorandum,  with 
which  a  p^rty  in  the  cause  has  nothing  to  do.  The  report  in 
fhe  case  of  the  lessee  v.'as  dffective.   and  it   is  exToneous  in 


Law  Miscellanies.  263 

this,  that  the  ncJhsuit  would  appear  to  have  been  suffered  on  the 
merits,  where,  in  consequence  of  a  conveyance  being  over- 
ruled, as  not  competent  to  be  given  in  evidence,  and  this  on 
a  technical  objection,  the  date  of  it  being  after  the  demise 
laid  in  the  declaration.  Yet  it  was  under  the  idea  that  a 
nonsuit  was  suffered  on  the  merits,  that  it  went  before  the 
board  of  property,  and  this  from  the  report  of  the  judge.  It 
was  a  rule  with  the  board  that  on  a  verdict,  or  nonsuit, 
the  granting  a  patent  should  depend.  And  on  this  principle 
the  heirs  of  Highland  obtained  the  patent  which  though  not 
conclusive,  has  always  such  weight,  on  a  settlement  right, 
that  it  becomes  up  hill  to  contend  against  it  in  a  court  of 
law. 

Lessee  of  Robert  Morris  v.  William  Neighman,  1779. 

This  involved  some  principles  under  the  act  of  3  April, 
1792.  1  ;  whether,  a  warrantee  forfeits  his  right  under  the 
warrant  by  not  making  a  settlement  on  the  lands  within 
two  years. 

2 ;  Whether,  if  a  forfeiture  be  incurred,  the  defendant 
might  not  enter,  and  the  condition  being  broken,  take  advan- 
tage thereof. 

As  to  the  necessity  of  making  a  settlement  within  two 
years,  there  was  an  exception  in  the  act;  "the  being  by 
force  of  arms  of  the  enemies  of  the  United  States  prevented 
from  making  such  actual  settlement,  Sec." 

An  Indian  war  did  prevent  until  a  certain  period.  What 
was  that  period  .''  The  court  say  the  war  continued  in  fact 
until  the  treaty  was  concluded  by  General  Wayne  ;  and  un- 
til that  treaty  was  ratified  by  the  president  and  senate  of 
the  United  States.  I  would  query,  did  not  the  treaty  put 
an  end  to  hostilities  in  fact;  and  as  to  ratif cation  it  must 
be  considered  as  relating  to  that  peace  established. 

But  on  the  2d  point ;  the  court  lay  it  dijwn,  that  no  in- 
dividual can  take  advantage  of  the  breach  of  the  condition 
"  unless  through  the  instrumentality  of  the  state  by  granting 
new  warrants  in  a  speciHed  form." 

It  was  contended  and  might  be  made  a  question  on  the 
other  side,  whether  xhi  act  of  the  legislature  itself  did  not 


264  Law  Miscellanies. 

provide,  that  advantage  should  be  taken  of  the  forfeiture,  in 
a  different  manner,  viz.  by  the  entry  of  an  individual^  without 
a  warrant.  "  It  shall  be  lawful  to  and  for  this  common- 
wealth to  issue  new  warrants  to  other  actual  settlers  for  the 
said  lands."  Must  not  applicants  have  actually  settled  before 
the  warrant  could  issue  ?  If  so,  an  entry  for  the  condition 
broken  is  allowable. 

Hazard  v.  Lowry*  A  note  is  added  by  the  editor,  page 
214.  "This  judgment"  says  he  "fully  confirms  the  doc- 
trine of  Morris  v.  Neighman,  and  the  point  is  settled."  On 
the  contrary  it  did  not  touch  the  all-sweeping  doctrine  in 
Morris  v.  Neighman,  viz.  "  that  an  entry  could  not  be  made 
■without  a  vacating  warrant.'*''  The  person  entering  could 
see  the  tract  vacant^  and  that  it  had  remained  vacant  for 
more  than  two  years  since  the  pacification  by  the  treaty  of 
General  Wayne  ;  but  how  could  he  tell,  or  the  commonwealth 
ascertain  the  warrant  it  had  been  surveyed  under. 

It  was  impossible  to  ascertain  it,  where  the  description  in 
applications,  refer  to  some  leading  warranty  as  it  is  called, 
and  it  could  only  be  by  measuring  over  again,  the  whole 
country  that  it  could  be  known  what  warrant  would  take  a 
particular  tract.  The  idea  of  a  vacating  warrant  never 
ought  to  have  come  into  the  mind,  in  such  a  case.  Nor  the 
idea  of  not  having  aright  of  entry  without  a  warrant.  It  is 
contrary  to  the  policy,  and  express  words  of  the  act.  The 
point  is  not  settled^  and  I  take  it  never  will  be  in  that  way. 

Attorney  General  v.  grantees  under  the  act  of  3d  April. 
1792. 


2  Smith's  Laws,  105. 

"  His  religious  principles"  says  the  editor,   speaking  of 

William  Penn,  the  grantee  of  the  charter  under  Charles,  II, 

"  did  not  permit  him  to  wrest  the  soil   of    Pennsylvania,  by 

force  from  the  people  to  xvhom  God  and  nature  gave  it.^^    What 

5s  the  evidence  of  God,  or  nature  having  given   it,  fiave  the 


Law  Miscellanies.  265 

mere  circumstance  of  possession ;  or  the  being  found  upon  it. 
God  and  nature  have  given  the  whole  earth  to  man  as  a  com- 
mon inheritance.  But  the  right  to  a  particular  part  can  be 
no  more  than  his  proportion  of  the  soil  to  the  individual. 
This,  taking  into  view  quantity  and  quality*  Power  may 
engross  more,  but  it  is  incorrect  in  that  case  to  resolve  it 
into  right.  It  is  the  common  cant^  that  the  natives  had  an 
exclusive  title,  under  the  law  of  nature  to  this  continent ; 
but  it  cannot  bear  the  test  of  an  investigation.  They  had 
a  right  only  to  so  much  of  it  as  was  their  proportion  of 
the  whole  earth.  This  is  taking  up  the  matter  on  the  strict 
principle  of  natural  right.  Upon  this  principle,  can  it  be 
said,  that  a  few  scattered  tribes  could  claim  the  whole  of 
this  continent.  So  soon  as  discovered,  the  nations  of  Eu- 
rope had  a  right  to  enter  upon  it,  the  share  being  too  much 
which  they  occupied  in  proportion  to  their  population. 
But  I  do  not  question  the  expediency  of  obtaining  by  fair 
means,  and  even  by  purchase,  the  possession  of  a  part. 
This  was  advisable ;  as  an  individual  may  buy  his  own  to 
avoid  a  law  suit;  or  give  something  in  consideration  of  qui- 
eting a  claim.  It  may  be  said  that  considering  their  mode 
of  life,  hunting,  a  larger  tract  was  necessary  to  an  individu- 
al savage,  than  to  a  civilized  man  living  by  the  cultivation  of 
the  soil.  What  have  we  to  do  with  mode  of  life  where 
right  is  in  question  ?  My  ideas  on  this  head  were  expressed 
some  years  ago,  in  a  treatise  on  the  Indian  right  of  soiL 

On  what  is  it  foumled  ?  Havinghadafoot  first  on  the  continent? 
Then  one  Indian  might  claim  the  whole  :  spend  his  winter  in  the  tor- 
rid zone — his  summer  in  one  or  other  of  the  frigid,  and  sprmg  and 
fall  in  the  temperate.  That  would  be  unreasonable.  Will  two  Indi- 
ans have  this  rij:jht  ?  There  must  be  more  than  that.  Two  tribes  ? 
It  would  be  too  much  to  take  up  the  whole  continent  with  two 
tribes.  How  many  must  there  be  to  give  the  right  ?  Just  as  many 
as  there  are.  If  there  was  one  less,  would  they  have  the  right? 
Yes.  Two  less  ?  Yes.  How  many  might  there  be  less,  and  the 
right  exist  ?  I  cannot  tell— nor  no  one  else.  There  must  be  some 
fixed  principles  on  which  all  right  depends.  Under  the  great 
i'^w  of  nature,  it  is  a  ric^ht  to  as  much  as  is  necessary  for  our  «ub- 

L  7.  / 


266  Law  Miscellanies* 

sistcnce.     By  pasturage  or  hunting  ?     No  ;    by  agriculture.     Be- 
cause in  this  way  of  life  most  can  subsist  at  the  same  time. 

But  men  by  the  municipal  laws  of  society  hold  more  than  aii 
equal  quantity.  What  has  this  to  do  with  the  great  out-wheel  of 
natural  law,  which  gives  the  earth  to  man  in  common.  The  muni- 
cipal law  binds  as  citizens  ;  the  law  of  nations  as  societies  ;  but  the 
law  of  nature  as  men.  Say,  as  the  number  of  inhabitants  upon  the 
earth  is  to  its  extent,  so  the  right  of  each  individual  to  his  share. 
God  gives  a  man  no  more  when  he  dies  than  space  to  lie  down 
\ipon,  and  how,  more  in  life  than  to  enjoy  reasonably  ?  Let  the  ap- 
peal be  made  to  him.  Great  spirit ;  says  the  Indian,  here  is  a 
white  man  that  wants  some  of  my  land.  How  much  have  you  ? 
Ten  miles  square.  The  tenth  of  that  may  serve.  To  hunt  upon  ? 
No  ;  but  to  plant  corn,  raise  hogs,  and  live  like  a  man.  But  did 
not  you  give  me  all  this  ?  I  have  given  none  of  you  more  thatt 
.mother.  There  is  the  earth,  and  the  dividing  of  a  sea  or  a,  river 
makes  no  partition.  It  is  true,  I  do  not  permit  the  inhabitants  of 
Jupiter  or  other  planets  to  come  down  to  your  earth,  but  have  pla- 
ced a  law  of  nature  to  hinder  it :  but  on  the  same  planet,  I  know 
nothing  of  what  is  called  the  right  of  the  natives,  beyond  at  inost 
a  right  of  preference  to  chuse  their  ground,  or  to  hold  that  which 
they  already  cultivate. 

Nevertheless,  as  has  been  said,  it  \vas  not  inexpedient  to 
purchase,  more  especially  as  the  wild  man,  or  savage  must 
he  considered  as  having  some  right  within  the  extent  ceded, 
that  is  to  his  proportion  as  an  individual  of  the  human  race 
in  common  with  the  civilized,  and  those  living  more  hu- 
mano,  and  not  in  the  manner  of  beasts.  But  in  these  pur- 
chases, the  utmost  fair  dealing  ought  to  have  been  observed; 
which  was  not  always  the  case.  As  for  instance  in  the  case 
of  what  is  called  the  walking-  purchase;,  of  which  the  In- 
diiuis  complained,  as  having  had  an  advantage  taken  of 
them.  The  ^idck  step  is  distinguished  in  military  tactics 
from  the  slow;  and  on  a  wager  taken  on  to  walk  from 
York  to  London,  in  a  given  time,  the  bet  is  not  considered 
fanly  won  where  the  pedestrian  n/;3«  instead  of  walks;  audit 
would  not  seem  to  have  been  according  to  the  understanding 
df  the  contract,  to  take  the  chord oi  the  arch  on  the  Delaware. 


Law  Miscellanies,  26v 

instead  of  the  curves.  This  could  not  but  have  produced  great- 
er heart-burning  in  the  simple  mind,  than  even  a  claim  of 
right  plainly  made  and  asserted.  I  refer  to  what  was  call- 
ed the  -walking  purchase  spoken  of,  2  Smith,  page  116. 

The  case  of  the  Attorney  General  v.  the  grantees,  under 
the  act  of  April  1792,  has  been  reported,  4  Dal.  237,  and 
this  has  been  read  in  court ;  or  referred  to  as  containing 
the  construction  of  the  court  on  the  act  in  question.  As 
this  report  carries  with  it  the  appearance  of  a  concurrf^nce 
of  the  other  jixdges  on  the  bench,  in  the  sentiments  deliver- 
ed by  the  presiding  judge,  (Yates)  it  becomes  proper  for  me 
to  have  it  known  that  I  did  not  concur  in  that  construction 
as  to  some  particulars,  and  I  did  make  it  known  to  the  pre- 
siding judge  himself  at  the  time,  and  did  take  it,  that  he 
made  it  known  in  delivering  his  charge  to  the  jury,  that  in 
some  things,  he  delivered  his  own  opinion  only ;  or  at  least 
did  not  deliver  mine.  For  admitting  that  I  did  concur  with 
him  in  the  sentiments  necessarily  arising  on  the  point  in  issue, 
yet  not  as  to  some,  or  at  least  to  one  sentiment,  incidentally 
introduced.  For,  by  a  reference  to  the  case  of  Morris  v. 
Ncighman,  the  effect  of  the  warrant,  as  voidable  by  an  entry 
without  warrant,  would  seem  to  be  introduced  :  and  the  doc- 
trine in  one  point  of  the  decision  in  Morris  v.  Neighmaiij, 
by  implication  sanctioned;  viz.  that  a  right  of  entry  is  not 
given  to  the  settler  on  the  non-compliance  with  the  condition 
of  settlement  by  the  warrantee.  To  this  doctrine  I  could  not 
subscribe ;  for  an  entry  appeared  to  me  to  be  given  by  the 
strongest  implication;  and  that  the  warrant  was  voidable, 
equally  by  the  entry  of  the  settler,  as  by  the  new  warrant  at 
the  commonwealth.  For  in  the  latiguage  of  the  presiding 
judge  himself  "  the  lands  becoming  forfeited  by  the  omission 
of  certain  acts  e»ijoined  on  the  warrant  holders,  they  became 
"oested  in  the  ivhole  body  of  the  citizens^  as  the  property  of  the 
commonwealth^  subject  to  the  disposition  of  the  lands ^  Now 
if  they  become  vested  in  the  citizens  must  they  not  be  in  as 
of  their  former  estate,  and  to  the  disposition  of  what  lav.- 
CQuld  this  estate  he  subject,  but  of  that  la>Y  already  provided  ; 


268  Law  Miscellanies. 

and  if  an  cntr)'  under  that  law  was  given  without  warrant, 
on  the  lands  as  before  in  the  commonweahh,  why  not  now? 
I  will  admit  that  the  condition  of  the  grant  by  warrant 
under  the  act  of  April  2,  1792,  is  not  a  condition  precedent ; 
but  that  the  grantee  in  the  warrant  has  estate  in  fee  simple 
by  virtue  of  the  grant.  But  I  take  it  that  by  necessary  im- 
plication, it  is  a  conditional  limitation  ;  the  effect  of  which 
must  be,  that  on  the  non-fulfilment  of  the  condition,  an  entry 
IS  given  to  him  for  whom  the  grantor  has  provided;  and 
from  the  express  words  of  the  act,  would  it  not  seem  that 
the  state  (the  grantor)  has  provided  for  the  entry  of  an  actual 
settler  on  the  non-compliance  v/ith  the  condition  of  settlement 
on  the  part  of  the  warrantee.  "  In  default  of  such  actual 
settlement  and  residence,  it  shall  be  lawful  to,  and  for  this 
commonwealth  to  issue  new  warrants  to  other  actual  settlers 
for  the  said  lands."  And  "  if  words  of  condition  be  used 
on  the  creation  of  an  estate,  and  on  breach  of  the  condition, 
the  estate  be  limited  over  to  a  third  person,  and  does  not 
immediately  revert  to  the  grantor,  or  his  representatives,  as 
if  an  estate  be  granted  by  A  to  B,  on  condition  that  within 
two  years,  B  intermarry  with  C,  and  on  failure  thereof  then 
to  D,  and  his  heirs  j  this  the  law  construes  to  be  a  limita- 
tion and  not  a  condition."  2  Black.  155.  Now  it  would 
seem  to  me  that  granting  new  warrants  to  other  actual  set- 
tlers is  a  provision  in  favour  of  such  citizens  of  the  com- 
monwealth as  might  be  disposed  to  appropriate  by  settle- 
nAent.  For  it  is  as  much  as  to  say,  the  condition  not  being 
complied  with,  a  right  of  entry  is  given  to  others  who  upon 
settlement  and  residence  shall  be  entitled  to  warrants.  It 
might  be  some  question  whether  warrants  could  issue  to 
other  than  persons  actually  settled.  For  as  the  object  of 
the  state  had  been  defeated  by  the  first  grantees,  in  a  prin- 
cipal part  of  the  object  of  the  lav/,  the  settling  the  country, 
it  would  be  reasonable  that  it  should  provide  against  a  like 
non-compliance,  a  second  time  by  granting  only  to  such  aa 
had  actually  settled.  But  be  this  as  it  may,  it  would  appear 
to  be  against  the  policy  of  the  law  to  suspend  the  right  of 
entry  until  it  could  be  ascertained  by  an  inquisition  of  issue 


Law  Miscellanies.  269 

of  office,  that  the  condition  had  not  been  complied  wiih  : 
more  especially  when  from  the  difficulty  of  ascertaining  the 
precise  spot  on  which  the  survey  was  made  under  2i  particu- 
lar warrant,  it  must  be  a  work  of  time  to  point  it  out,  and 
ground  an  application  for  a  new  warrant.  But  sanction  the 
entry,  and  in  the  mean  time  the  settlement  goes  on,  and  when 
the  warrantee  comes  forward  with  his  warrant,  if  he  ever 
does,  his  own  shewing  will  point  it  out.  But  let  it  be  con- 
sidered and  which  perhaps  it  ought  to  be,  an  estate  defeasi- 
ble on  a  condition  subsequent ;  and  applying  the  law,  that  in 
such  case,  a  stranger  could  not  take  advantage  of  the  condi- 
tion broken,  the  estate  being  voidable,  and  not  void.  2  Coke 
Lyt.  214.  Yet  the  question  will  remain,  whether  a  citizen 
desirous  to  settle  can  be  considered  to  be  a  stranger.  Had 
not  every  member  of  the  state,  an  interest  in  the  occu- 
pancy of  these  lands  could  the  body  politic  be  considered 
otherwise  than  as  a  trustee  for  the  whole  ;  where  every  in- 
dividual of  the  community  was  in  the  light  of  a  cestui  que 
use  as  to  a  right  of  entry  and  settlement  oi'  this  vacant  coun- 
try ?  This  is  a  construction  of  the  act  most  consistent  with 
the  policy  of  securing  the  improvement  of  it.  It  is  certain- 
ly the  least  favourable  to  the  engrossing  large  tracts  of  un- 
cultivated country,  and  most  favourable  to  the  poorer  sort, 
for  whose  benefit  the  means  of  acquiring  land  for  the  sup- 
port of  a  family  by  labour  without  money,  in  the  first  instance 
would  seem  to  have  been  intended.  Nay,  for  whose  bene- 
fit, the  provisions  of  the  law,  or  any  other  construction,  must 
be  in  a  great  degree,  an  illusion;  for  the  country  being  over- 
spread with  warrants~almost  generally  immediately  on  the 
opening  of  the  office,  or  rather  before  it  is  opened,  what 
chance  had  they  to  any  great  extent,  but  from  the  voidable 
nature  of  the  grants  on  the  non-compliance  of  the  warrantee 
with  the  condition  specified  ? 

The  negative  of  this  doctrine  was  laid  down  in  the  case 
of  the  lessee  of  Morris  v.  Neighman,  4  Dal.  209,  "  that  even 
if  it  were  a  case  of  forfeiture,  no  individual  could  take  ad- 
vantage of  it  by  entering  on  the  land  ;  the  advantage  could 
only  be  taken  by  the  commonwealth,  v/hose  officers  might 


27ii  Law  Miscellanies. 

issue  new  warrants  m  the  form  prescribed  by  the  act  of  as- 
sembly." But  this  was  at  a  circuit  court  before  not  more 
than  two  judges  of  the  supreme  court,  and  this  in  the  course 
of  a  jury  trial ;  and  if  there  was  not  an  appeal  from  the  di- 
rection of  the  court  in  this  particular,  it  was  because  (and  be- 
ing of  counsel  for  the  defendant  I  have  a  right  to  know)  the 
charge  of  the  court,  and  the  facts  of  the  case  were  against 
him  on  another  point,  viz.  that  his  entry  though  two  years 
after  the  date  of  the  warrant,  yet  was  before  the  general  pa- 
cification of  the  country,  during  which  time,  the  limitation 
ran,  and  the  forfeiture  was  saved,  there  being  a  prevention 
of  settlement,  by  the  Indian  hostilities.  It  is  true  what  was 
suggested  in  Morris  v.  Neighman,  so  far  as  related  to  this 
point,  was  but  impliedly  sanctioned  by  a  reference  to  that 
case,  on  another  point ;  nevertheless,  involving  great  conse- 
quences, in  the  construction  of  the  statute,  I  did  not  choose 
that  it  should  pass  as  receiving  my  concurrence  in  this  par- 
ticular. Nor  as  to  what  was  laid  down  in  that  case  with  re- 
gard to  the  time  during  which  the  prevention  ought  to  be 
considered  as  lasting,  whether  until  Wayne's  treaty  or  after, 
I  was  not  prepared  to  give  an  opinion,  and  therefore  was 
not  willing  to  be  considered  as  recognizing  the  one  given  j 
for  which  reason  I  objected  to  the  introduction  of  a  reference 
to  Morris  v.  Neighman's  case,  or  an  implied  sanction  of  the 
extent  of  the  doctrine  laid  down  in  it.  More  especially  as 
it  was  evident  from  the  very  act  under  which  this  extra  court 
then  sitting  was  constituted,  that  so  far  as  a  legislative 
exposition  could  have^  weight,  it  was  in  the  face  of  this 
doctrine ;  and  this  by  unavoidable  implication  from  the  fol- 
lowing clause  of  the  preamble.  "As  much  confusion  might 
arise,  if  the  state  were  to  continue  to  grant  lands  which  in 
consequence  oi  former  acts  may  have  become  the  property 
of  others."  How  could  they  have  become  the  property  of 
others,  otherwise  than  by  grant,  if  not  by  the  entry  of  the 
settler  ? 

In  all  other   matters  laid  down  by  the  presiding  judge, 
•n  the  direction  to  the  jury,  in  the  case  of  the  Attorney  Ge^ 


Law  Miscellanies.  Q7l 

neral  v.  grantees,  I  acquiesced  then,  and  am  Well  satisfied 
now  of  the  correctness  of  the  principles. 


The  litigation  which  has  arisen  in  regard  of  original  title 
to  real  property,  in  Pennsylvania,  has  been  owing,  in  a  great 
degree,  to  the  deception  of  purchasers,  and  the  fraud  and 
negligence  of  officers  intrusted  with  the  carrying  grants  into 
effect.  The  grant,  under  whatever  name,  or  in  whatever 
quantity,  it  may  have  been,  was  a  matter  between  the  proprie- 
taries whilst  they  continued  the  owners  of  the  soil,  and  those 
to  whom  they  chose  to  grant.  It  was  in  the  evidence  of  ap- 
propriation that  the  community  became  interested.  Had  the^ 
whole  country  been  a  woodless  plain  like  Egypt,  a  place  of 
beginnmg  marked  by  a  stone  or  other  monument,  would  have 
been  all  that  could  have  been  obtained.  Courses  by  the 
compass,  and  distance  by  the  chain,  must  have  done  the 
rest.  But  the  variation  of  the  compass  and  the  unavoida- 
ble inexactness  of  measurement,  would  have  rendered  the 
identity  of  the  specific  ground  appropriated,  in  length  of 
time  uncertain.  It  was  a  dictate  of  good  sense  therefore, 
and  was  of  gv^neral  convenience,  the  country  being  a  timber- 
ed forest,  to  adopt  the  expedient  of  the  natut?al  boundary 
of  trees,  marked,  as  a  corrective  where  they  could  be  found ; 
and  when  these  so  marked  can  be  ascertained,  they  are  aly 
ways  to  govern.  The  instructions  from  the  surveyor  gene- 
ral to  his  deputy,  from  the  earliest  period,  were  to  go  upon 
the  ground  and  run  the  courses  and  distances,  and  mark  the 
trees.  But  as  in  this  case  the  trouble  of  going  on  the  ground 
and  the  expence  of  paying  chain  carriers,  and  a  marker  of  the 
trees,  and  of  provisions  furnished  for  these,  must  be  incur- 
red by  him  for  whom  the  survey  was  made,  there  was  a  temp- 
tation to  dispense  with  the  going  on  the  ground;  or  the  ac- 
tual running,  and  marking  the  boundary  trees.  But  more 
frequently  the  surveyor  himself  intrusted  to  make  the  sur- 
vey as   officer  and   as  agent,  took  it   upon   him  to  dispense 


272  Law  Miscellanies. 

with  going  on  the  ground,  and  made  the  survey  on  paper 
merely.  This  he  could  do,  by  stating  a  beginning  on  some 
other  survey  actually  made,  and  taking  the  courses  and  dis- 
tances of  that  survey,  or  part  of  them,  for  the  courses  and 
distances  j^retended  to  have  been  now  run.  His  temptation 
to  do  this,  was  the  saving  himself  trouble,  his  fees  being 
charged  the  same  as  if  he  had  gone  upon  the  ground.  A 
neighbour  wishing  to  appropriate,  or  informing  one  who 
wishtd  to  appropriate,  knowing  there  had  been  no  surveyor 
on  the  ground,  or  boundary  tree  marked,  would  speak  of 
this  land  still  vacant ;  nor  would  the  return  to  the  office  of 
a  survey,  on  this  ground,  give  him  information  of  which  he 
Gould  reasonably  take  notice;  because  there  having  been,  in 
fact,  no  survey  made  on  the  ground  in  question,  he  must 
conclude  it  to  be  some  other  ground,  on  which  the  survey 
was  made.  And  here  sprung  the  first  error  of  our  courts 
of  justice  in  sanctioning  a  survey  where  a  conflicting  claim 
came  in  question,  which  had  not  been  made  by  going  on  the 
ground,  and  actually  running  the  lines.  These  were  the  di- 
rections of  the  proprietary  office  for  the  granting  lands,  and 
where  this  was  not  done,  it  must  be  the  fault  of  the  grantor, 
or  the  fraud  of  the  officer,  and  the  ground  ought  not  to  have 
been  considered  as  yet  legally  measured  off;  but  as  belong- 
ing to  the  unappropriated  mass,  and  liable  to  be  disposed  of 
to  others.  For  though  the  officer  must  be  considered  as  the 
agent  of  the  proprietary  the  grantor  of  the  soil,  yet  he  must 
be  viewed  also,  in  the  light  of  the  agent  of  the  grantee  and  as 
against  whom  as  agent,  the  grantee  has  redress  by  complaint 
to  the  principal,  or  by  action  at  law  against  himself.  His 
acts  to  a  certain  extent  must  be  considered  as  the  acts  of  the 
grantee ;  and  third  persons,  innocent,  bona  fide  purchasers, 
ought  not  to  be  affected  by  the  irregularity  of  carrying  a 
grantintpeffect  according  to  the  implied  or  known  terms  of 
the  contract.  Where  it  becomes  a  wrong  to  others  ;  that  is 
the  occasion  of  their  taking  the  same  land  as  unappropriated, 
this  wrong  ought  not  to  be  taken  advantage  of  by  the  authors 
of  it.     It  is  conirarv  to  the  maxim. 


Law  Miscellanies.  273 

But  the  irregularity  was  not  only  In  not  going  on  the 
ground  to  run  the  courses  and  distances,  according  to  the  in- 
structions of  the  office  or  the  authority  of  the  warrant,  and 
taking  for  boundaries,  the  surveys  of  others  made  at  other 
times,  but  in  taking  up  the  courses  and  distances  made  under 
a  different  warrant  returned  afterwards  on  a  survey  not  on 
the  ground  for  which  it  called  ;  or  courses  and  distances  run 
with  a  view  to  a  warrant  that  might  be  taken  out,  and  which 
when  taken  out  was  returned  as  made  at  a  date  subsequent  to 
the  date  of  the  vrarrant,  and  with  which  date  the  marks  on 
the  trees  would  not  correspond ;  and  which  the  testimony 
of  the  vicinage  would  refute  having  knowledge  of  the  time 
when  the  survey  was  actually  made.  Notoriety  of  appro- 
priation is  a  great  object;  audit  was  the  act  in  pais  the  car- 
rying the  grant  into  effect  by  actual  admeasurement,  and  lay- 
ing off  by  marks  that  even  the  unlettered  could  read,  that 
was  in  the  view  of  the  owners  of  the  soil,  and  ought  to  have 
been  regarded  by  every  purchaser.  The  neglect  of  this, 
or  omission,  was  a  legal  fraud  upon  the  public  who  had  an 
interest  in  the  notoriety  of  appropriation.  For  the  proprie- 
tary William  Penn,  took  his  charter  subject  to  an  implied 
condition  of  settlement.  For  this  is  not  only  the  object  of 
all  colonization ;  but  it  is  held  out  in  the  charter  as  the  ob- 
ject of  the  grant,  "  the  enlarging  the  English  empire,  and 
promoting  useful  commodities."  This  from  the  preamble 
of  the  charter ;  and  again  in  Stc.  5.  "  that  this  new  colony 
may  more  happily  increase  by  the  multitude  of  people  resort- 
ing thither,  Ave  for  us,  our  heirs  and  successors  do  give  and 
grant  by  these  presents,  pov.'er,  licence  and  liberty  unto  all 
liege  people  and  subjects  both  present  and  future  of  us,  our 
heirs  and  successors,  excepting  those  Vvho  shall  he  specially 
forbidden  to  transport  themselves,  and  families  to  the  said 
country,"  and  doubtless  the  proprietaries  under  this  charter, 
had  this  object  honestly  in  view,  because,  if  fi'om  no  other 
reasons,  their  interest  was  connected  with  it.  Every  pur- 
chaser had  an  interest  in  the  population  of  the  country;  for 
the  improvement  of  the  settlement  was  the  iinprovement  cf 
his  mdividuui  fliim.     Every  stroke   of  an  axe  struck  by  Ills 

M  M 


2/4  Law  Miscellanies. 

neighbour,  in  clearing  the  country  was  half  a  stroke  fot 
him.  Could  any  thing  more  effectually  defeat  the  object 
of  the  crown  in  granting,  or  of  the  proprietary  in  tak- 
ing the  charter ;  or  of  the  purchasers  interested  in  the  im- 
provement of  the  country,  than  irregularity  in  the  appropri- 
ation, defeating  the  notoriety  of  it,  and  misleading  settlers. 
It  was  a  monstrous  evil,  and  the  judiciary  at  an  early  hour 
ought  to  have  set  their  faces  against  it.  The  proprietary 
board  of  property  did;  and  I  take  it  that,  in  the  exaroina- 
lion  of  their  proceedings,  it  will  appear  that  in  general  they 
discovered  a  willingness  to  save  an  applicant  from  the  wrong 
likely  to  be  suffered,  either  in  his  settlement,  or  warrant  from 
a  want  of  notice  of  what  purported  to  be  a  prior  appropria- 
tion, but  which  had  not  been  regularly  carried  into  effect.  Be 
that  as  it  may,  the  commonwealth  succeeding  to  the  owner- 
ship of  the  soil,  would  seem  to  have  had  their  attention  drawn 
to  these  irregularities  which  had  prevailed,  and  to  the  mis- 
chiefs of  them.  For  by  an  act  of  1785,  entitled  an  act  to 
provide  further  regulations  whereby  to  secure  fair  and  equal 
proceedings  with  the  land  office,  and  in  the  surveying  of 
lands,  Sec.  9-  3  Dall.  316,  it  is  provided  that  "  every  survey 
hereafter  to  be  returned  into  the  land  office  of  this  state, 
upon  any  warrant  which  shall  be  issued  after  the  passing  of 
this  act,  shall  be  made  by  actual  going-  upon  and  measuring 
of  the  land^  and  mai'king  the  lines  to  be  retwmed  upon  such 
'cvarrant^  after  the  warrant  authorisiiig  such  warranty  shall 
come  to  the  hands  of  the  deputy  surveyor  to  xvhom  such  xvar- 
rant  shall  be  directed^  and  every  survey  made  theretofore^  shall 
be  accounted  clandestine^  a7id  shall  be  void,  and  of  no  effect 
■whatever^''  and  every  deputy  surveyor,  upon  request  to  him 
made,  shall  give  a  receipt  in  writing,  signed  by  him,  to  the 
person  delivering  any  warrant  of  survey;  in  which  receipt 
shall  be  set  forth  the  day  and  year  when,  and  the  order  in 
which  the  same  warrant  shall  hare  come  to  the  hands  of  such 
deputy  surveyor,  and  also  the  grantee's  name  and  surname, 
and  the  number  of  acres  to  be  surveyed  thereon,  and  als?^ 
the  number  of  the  same  warrant." 


Law  Miscellanies.  27o 

The  mischiefs  that  did  exist  before  the  passing  of  this  act, 
were  the  not  going  on  the  ground  and  ^narking  the  lines 
by  which  act  in  pais  there  could  be  notice,  to  the  whole  ccnn- 
munity  ;  but  returning  a  survey  as  marked  which  in  fact 
was  not  marked  ;  but  what  was  an  equal  mischief,  the  tak- 
ing a  survey  that  had  been  made  under  another  warrant,  or 
•ander  no  warrant,  and  returning  it  as  marked  of  the  date 
purporting  to  be  surveyed ;  which  would  be  contradicted 
by  the  marks  upon  the  ground,  and  the  testimony  of  the  vi- 
cinage ;  and  to  give  this  act  a  construction  according  to  the 
rules  of  construing  statutes,  the  most  in  advancement  of  the 
remedy  of  these  mischiefs,  it  would  seem  reasonable  to  ex- 
tend it  as  avoiding  all  surv^s  not  made  by  going  on  the 
ground,  and  marking  the  trees,  but  at  least  it  must  be  constru- 
ed as  avoiding  all  surveys  made  before  the  xvarrant  came  to 
hand^  even  though  the  survey  had  been  upon  the  ground.  If 
a  special  return  were  made  on  such  a  warrant  stating  a  re- 
turn on  a  survey  made  .for  another  purpose,  could  it  be  re- 
ceived in  the  face  of  this  act  ?  Is  not  a  general  return  there- 
fore concealing  the  fact ;  or  rather  stating  v/hat  was  not  a 
fact,  a  deception  upon  the  office,  and  an  evasion  of  the  law? 
I  would  take  it  to  be  in  contemplation  of  law  a  fraud  how- 
ever unintended  by  the  officer  or  the  warrantee  for  whom  the 
survey  was  made. 

There  are  circumstances  under  which  the  warrantee  would 
have  an  interest  over  and  above  the  saving  expcnces  of  a 
survey,  in  having  it  returned  upon  the  old  lines  actually  run 
for  other  purposes,  unless  indeed  the  warrant  was  so  special 
in  the  description  as  to  amount  to  a  designation  equal  with  a 
survey,  and  by  that  description  to  attach  from  the  grant.  For 
in  the  case  of  a  warrant,  not  specific,  it  might  be  an  object  to 
give  it  a  bed  as  soon  as  it  existed,  and  before  there  could  be 
time  to  survey  it  actually;  and  this,  to  exclude  the  laying 
other  warrants  perhaps  prior;  or  settlements  which  n.ight 
be  made  before  the  officer,  with  chain  carriers  and  provi- 
sions could  get  upon  the  groimd,  and  we  know  races  against 
time  have  not  been  uncommon  to  get  the  return  of  a  survey 
made.     I  do  not  mean  to  say  that  we  shall  presume  fraud- 

% 


276  Law  Miscellanies. 

but  that  where  circumstances  exist  that  tempt  to  fraud,  the 
suspicion  is  not  resisted  by  a  consideration  of  the  total  ab- 
sence of  all  motive.  That  it  is  in  contemplation  of  law  a 
fraud,  I  infer,  because  it  is  against  the  express  words  of  the 
act,  and  against  the  reason  and  policy ;  and  in  its  nature 
must  work  an  injury.  What  notice  can  any  one  get  from  the 
description  of  most  warrants,  though  entered  in  a  book  of 
the  surveyor  of  the  district  ?  What  notice  from  the  return  of 
a  survey  ?  It  is  the  marks  on  the  ground  that  a  settler  will 
look  for.  These  he  has  a  right  to  have,  and  of  these  he  is 
bound  to  take  notice.  The  age  of  the  survey  can  be  distin- 
guished ;  and  will  a  settler  be  bound  to  read  a  survey  in  ap- 
pearance years  old,  as  one  which  had  been  recently  made? 
It  will  prove  to  him  that  no  survey  has  been  made  which  can 
correspond  with  the  existence  of  the  warrant.  His  conclu- 
sion m.ust  be  that  there  is  no  survey.  The  considering  the 
entry  of  a  warrant  in  the  surveyor's  books  as  a  notice  of  the 
ground  which  it  calls  for,  is  assuming  that  the  warrant  con- 
tains a  particular  description  cj  the  ground.  This  is  required 
by  the  act  of  assembly  under  which  the  warrant  issued,  and 
where,  agreeably  to  the  act,  the  warrant  contains  a  particu- 
lar description,  it  may  come  near  to  all  the  notice  of  a  sur- 
vey. But  even  there  it  cannot  separate  the  tract  from  the 
common  stock  precisely,  and  it  is  only  a  survey  that  can  do 
it.  This  the  purchasers  are  interested  in  having,  and  have 
a  right  to  call  for.  The  act  has  prescribed  a  particular  de- 
scription in  the  application  ;  it  has  prescribed  an  entry  with 
the  surveyor  of  the  districty  an  actual  survey  on  the  ground. 
The  land  office  has  admitted,  in  many  instances,  applications 
without  a  particular  description,  and  the  entry  of  the  warrant 
in  the  surveyor's  books  gives  no  notice.  This  furnishes  an 
additional  reason  Avhy  the  provisions  of  the  act  shall  be  re- 
spected in  regard  of  going  on  the  ground. 

By  an  act  of  assembly  of  the  12th  of  March,  1783,  a  dis- 
trict of  country  was  surveyed  and  returns  made  into  the  sur- 
veyor general's  ofRcc  with  a  view  to  a  sale,  but  which  as  to  a 
portion  of  the  tract  surveyed  did  not  take  place,  so  that  a 
number  of  the  lots  so  surveyed,  remained  on  hand.     At  the 


Law  Miscellanies.  277 

opening  of  the  office,  April  3d,  1792,  for  the  sale  of  the 
lands,  west  of  the  Ohio,  and  comprehending  this  district,  it 
fell  into  the  common  mass  and  was  for  sale,  not  under  the 
act  of  March,  1783,  but  under  the  new  act  of  1792.  These 
lots  not  to  be  sold  at  vendue,  and  as  they  had  been  surveyed 
in  lots  of  200  or  300  acres,  but  made  subject  to  the  new  law, 
and  the  conditions  warranting  and  the  returns  of  surveys 
made  under  the  law  of  March,  1783,  were  in  the  office  as  of 
that  date.  The  marks  on  the  trees  were  of  that  date.  Could 
any  settler  entering  under  the  act  of  April,  1 792,  ever  dream 
that  marks  on  the  ground,  made  nine  year.s  before,  could  be 
considered  as  a  survey  lately  made.  As  between  the  war- 
rantee and  the  commonwealth,  such  return  of  survey  might 
nothe  void;  but  it  is  impossible  for  me  not  to  hold  it  voidable 
where  a  third  person  is  affected.  Even  if  notice  were 
brought  home  to  a  settler  of  the  circumstances  of  the  case, 
I  should  not  think  he  was  bound  to  take  notice  of  the  accept- 
ance of  such  returns ;  for  the  surveyor  general  had  no  pow- 
er to  take  such  surveys  off  the  file  and  attach  them  to  a  war- 
rant. But  the  contrary  of  this  would  seem  to  have  been  de- 
termined by  a  majority  of  the  court;  and  in  contemplation 
of  law  the  majority  must  be  right.  But  the  minority  owe  it 
to  justice  to  dissent ;  and  in  the  construction  of  a  statute  es- 
pecially. In  the  language  of  Justice  Chambre,  2  Bos.  and 
Pul.  403,  "  where  I  find  no  ambiguity  in  the  act,  and  think 
that  the  act  has  not  been  expounded,  but  contradicted,  I  feel 
it  my  duty  to  adhere  to  the  authority  of  the  statute."  I  can 
have  no  doubt  but  that  under  the  act  of  assembly  a  survey 
returned  without  going  on  the  ground  h  voidable;  and  a  sur- 
vey made  even  by  going  on  the  ground  before  the  warrant 
comes  to  hand,  is  void.  The  inclination  of  my  mind  is  to 
hold  them  void  in  both  cases.  For  that  I  take  to  be  the  true 
construction,  if  not  according  to  the  strictness  of  the  term  in 
both  cases,  it  is  according  to  the  intention  of  the  act.  I  ad- 
mit that  the  first  clause  may  be  considered  directory^  the  not 
going  on  the  ground  ;  and  the  return  only  voidable  ;  for  the 
arrangement  of  the  words,  may  bear  a  distinction* 


SrS  Law  MiSCELLANlESf. 

A  source  of  litigation  with  regard  to  lands  lying  west  of 
the  Allegheny  river,  was  the  conduct  of  the  secretary  of  the 
land  office  in  admitting  applications. 

The  law  of  the  third  of  April,  1792,  provides  that  "  upon 
the  application  of  any  person  who  may  have  settled  and  im- 
proved, or  is  desirous  to  settle  and  iaiprove  a  plantation,  to 
the  secretary  of  the  land  office,  v/hich  application  shall  con- 
tain a  particular  description  of  the  land  applied  for;  there 
shall  1)6  granted  to  him  a  warrant  for  any  quantity  of  land 
not  eicceeding  400  acres.^^  This  restriction  respected  the 
quantity  of  land  that  was  to  be  put  into  any  one  warrant, 
but  not  the  number  of  warrants  that  any  one  might  take  out. 
The  object  was  to  secure  reasonable  fees  to  the  common* 
wealth,  and  towards  the  support  of  the  land  office,  making 
many,  and  therefore  small  grants.  But  it  was  construed 
that  no  man  should  have  more  than  07ie  warrant  in  his  own 
name.  Hence  the  expedient  of  the  names  of  friends,  or  fic- 
titious names,  and  the  necessity  of  conveyances  from  these 
increasing  the  expences  of  the  grant,  by  conveyancing,  and 
recording  which  the  law  did  not  contemplate,  or  render  ne- 
cessary ;  it  was  the  oversight,  or  misconstruction  of  the 
land  office.  - 

But  this  was  a  small  matter  compared  with  the  monstrous 
error  which  accompanied  it,  the  construction  of  the  prece- 
ding clause  of  the  section  ;  the  application  "  containing  a 
particular  description  of  the  land  applied  for."  Did  not  this 
imply  such  a  description  as  to  distinguish  it  from  all  other 
lands,  and  which  no  one  could  make  who  had  not  traversed 
it,'  and  taken  some  natural  boundary,  or  designated  it  by  an 
artificial  ?  Yet  after  what  is  called  a  leadirig  location^  others 
were  admitted  as  describing  by  reference ;  thus,  an  applica- 
tion for  a  tract  of  land  at  the  mouth  of  a  certain  river,  and 
for  another  adjoining,  and  a  third  adjoining  that,  and  so  on 
to  the  end  of  the  chapter.  Such  applications  could  be  made, 
and  in  fact  were  made,  and  admitted,  from  a  map,  or  even 
without  a  map  ;  many  just  from  the  name  of  a  stream  which 
from  the  relation  of  a  traveller  was  said  to  run  through  the 
country.     Hence  the  nuinbcr  of  applications  filed   the   first 


Law  Miscellanies.  2/9 

day  of  the  opening  of  the  office.  The  whole  country  was 
applied  for  in  an  instant ;  nay  a  greater  extent  of  country 
would  not  have  satisfied  the  applications  that  were  filed. 
No  man  meaning  to  settle  bona  fide,  could  obtain  a  warrant 
for  a  tract  that  was  not  anticipated  by  a  pretence  of  applica- 
tion under  this  admission  of  the  land  office.  It  was  a  fraud 
in  the  first  instance  upon  the  public,  and  the  intentions  of  the 
law.  This  through  the  ignorance  of  the  secretary  of  the  land 
office,  who  admitted  the  applications.  The  Governor  was  in 
fault  that  did  not  on  this  great  and  momentous  occasion  attend 
to  it ;  or  perhaps  he  misconceived  the  thing  himself,  and  gave 
countenance  to  the  error.  But  hence  the  intention  of  the  law 
has  been  in  a  great  part  defeated.  This  intention  was,  in  a 
great  part,  the  accommodation  of  the  settlers,  and  the  settle- 
ment of  the  country.  But  what  is  perhaps  a  more  lasting 
evil,  hence  has  arisen  the  endless  litigation  and  insecurity  of 
title  in  the  country.  Such  is  the  value  of  mind,  whether  m 
discernment  or  application.  A  touch  of  a  finger  at  the  end 
of  a  lever  moves  a  great  weight.  A  small  matter  of  care 
and  judgment  at  the  beginning  of  a  purpose,  changes  the 
event  of  great  undertakings. 

Speaking  of  the  unwarrantable  and  mischievous  indul- 
gence of  the  land  office,  in  admitting  applications  in  the  case 
of  the  law  of  April  1792,  I  am  not  calling  in  question  the 
titles  derived  under  them ;  but  regretting  the  admission  as 
contrary  to  the  contemplation  of  the  law,  and  an  injury  to 
the  purchaser.  It  has  been  of  incalculable  evil  consequence. 
Innocent  foreign  purchasers  especially  have  reason  to  com- 
plain. 


The  juror^s  oath  altered  by  act  cf2\st  March,  1 806.     (Penn- 
■sylvama  Legislature. J 

BY  an  act  of  assembly  of  tlie  21st  March,  1806,  it  is 
enacted  that  the  oath  or  affirmation  to  be  administered  to 
jurors,  viz.  "  I,  A.  B.  do  swear  Tor  affirm  as  the  case  may  be) 


280'  Law  Miscellanies. 

that  I  will  well  and  truly  try  the  issue  joined  between  C.  D. 
plaintiff,  and  E.  F.  defendant,  and  a  true  verdict  give  accord- 
ing to  the  evidence,  nnless  dismissed  by  the  court^  or  the  cause 
■withdrawn  by  the  parties,''''  It  has  been  the  subject  of  mer- 
riment with  scientijic  men  out  of  the  state,  that  the  legisla- 
ture should  have  thought  such  a  qualification  of  the  oath  of 
a  juror  necessary.  But  it  is  because  the  legislature  thought 
it  necessary  otherwise  than  in  accommodation  to  the  scruples 
of  weaker  and  more  uninformed  jurors.  For  it  is  known  that 
in  administering  the  oath  according  to  the  form  heretofore 
used,  the  courts  had  oftentimes  a  great  deal  of  trouble  in  ex- 
plaining to  conscientiously  scrupulous  persons,  or  those  who 
affected  to  be  so,  which  was  the  most  common  case,  the  no- 
tice of  the  exception  implied  in  all  undertaking  to  do  an  act, 
that  if  a  stop  was  put  to  the  doing  the  act,  and  it  ceased  to  be 
required  of  them,  they  were  not  bound  to  do  it,  but  were  dis- 
charged from  the  obligation.  Thus  if  A  promises  to  marry 
B,  but  B  refuses,  A  is  discharged.  If  A  contracts  to  build 
a  house  for  B,  and  B  says  he  will  not  have  it  built,  A  is  dis- 
charged. An  oath  to  give  a  verdict,  implies  a  willingness 
to  take  it  on  the  part  of  those  to  whom  it  is  to  be  given.  A 
verdict  cannot  be  given  but  to  a  court  that  is  willing  to  take 
it.  Nor  will  a  court  take  it  but  for  the  use  of  parties  in  a 
suit.  It  is  therefore  implied  in  the  nature  of  an  undertaking 
to  give  a  verdict,  that  a  court  for  the  use  of  one  or  other  of 
the  parties,  or  both,  is  willing  to  take  it.  There  is  nothing 
undertaken  to  be  done  in  human  life,  but  the  undertaking  is 
accompanied  with  this  tacit  condition,  that  it  remains  physi- 
cally, or  morally  possible  to  do  it,  or  that  those  for  whom  it ; 
is  to  be  done,  are  willing  to  have  it  done.  When  a  candidate 
shall  have  been  elected,  or  appointed,  and  is  sworn  into  office, 
his  oath  is  to  execute  the  trust ;  is  it  necessary  for  him  in 
order  to  satisfy  his  conscience,  to  have  this  saving  that  he 
will  enact  it,  unless  the  office  is  taken  from  him^  to  which  he 
has  been  so  elected,  or  appointed  ?  The  truth  is,  it  is  a  laugh- 
able matter  to  well  informed  men ;  but  as  a  scruple  of  this 
kind  had  got  a  footing  in  common  understanding,  though 
where,  and  whence  it  originated,  it  is   difficult  to  conceive. 


Law  Miscellanies.  381 

ft  introduced  no  inconvenience,  but  the  making  the  oath  of 
the  juror  a  little  longer,  to  introduce  the  implication  by  ex- 
press words.  The  first  time  that  I  ever  heard  of  such  a 
scrtiple  was  from  a  juror  in  the  western  country,  at  the  first 
organization  of  Washington  county,  who  seemed  to  have 
some  difficulty  upon  this  head,  from  his  habits  of  casuistry, 
and  the  scrupling  articles  of  church  government  and  discipline. 
I  forget  whether  the  court  were  able  to  satisfy  him  by  ex- 
plaining the  tacit  condition  of  the  oath  ;  or  whether  they  ex- 
cused him  from  taking  the  oath^  and  of  course  from  serving 
as  a  juror.  But  be  it  as  it  might,  he  got  the  credit  of  being 
a  man  of  tender  conscience  ;  and  it  began  to  be  no  uncommon 
thing  to  allege  such  a  difficulty  in  the  taking  the  oath;  whe- 
ther from  conscience  or  from  policy  it  could  not  be  said.  The 
last  time  that  some  difficulty  of  this  kind  occurred  in  my  re- 
collection, with  a  juror,  was  in  a  court  at  Chambersburgh, 
Judge  Smith,  with  whom  I  sat,  said  it  was  the  law.  I  at- 
tempted to  explain  the  reason  of  the  law^  but  the  judge  inter- 
rupted me,  and  ordered  the  juror  to  be  sworn.  I  take  it, 
that  it  was  this  very  circumstance  which  gave  rise  to  this  ad- 
dition to  the  oath  of  a  juror.  It  will  be  seen  therefore,  that 
it  did  not  originate  with  the  legislature,  but  with  the  scruples 
of  the  people,  which  -whether  honest  in  all  cases^  or  affected, 
gave  the  court  trouble.  For  as  the  legislator  of  the  Jexvs^  is 
said  to  have  given  some  laws  to  the  people  in  the  wilderness, 
*'  because  of  the  hardness  of  their  hearts  ,•"  so  our  representa- 
tives have  thought  it  advisable  to  accommodate,  in  some  in- 
stances, to  the  weakness  of  the  people  whom  they  represent, 
and  with  whose  concerns  they  have  been  entrusted.  Legal 
characters  of  other  states,  or  individuals  of  good  sense,  to 
whom  I  have  made  this  explanation  of  the  amendment  in 
question,  were  satisfied,  and  deduced  no  inference  of  a  want 
of  understanding  in  our  legislature,  to  conceive  such  an  a- 
mendmcnt  necessary ;  an  amendment  changing  the  form  of 
an  oath  from  that  of  the  common  law,  and  which  had  been  in 
iise^  and  the  implication  of  it  generally  understood  f»r  an  im" 
memorial  period  of  years. 

N  N- 


282  Law  Miscellanies. 

I  will  observe  here,  as  an  apology  for  what  has  been  in- 
troduced, that  a  judge,  especially,  cannot  but  feel  a  peculiar 
interest  in  all  that  concerns  the  credit  of  the  legislature  of  his 
state  ;  in  all  that  relates  to  their  provisions,  as  well  as  to  the 
language  of  their  acts,  whether  ambiguous,  or  the  arrange- 
ment defective.  I  had  it  once  objected  to  me  by  a  Virg-inia 
lawyer;  an  expression  of  the  old  act  of  assembly,  I  think 
Galloway's  edition,  that  the  state  house  yard  should  be  "  sur*- 
rounded  by  a  brick  wall,  and  remain  an  open  tJiclosure  for- 
ever;" but  I  put  him  down  by  that  act  of  the  legislature  of 
Virginia,  which  is  entitled,  a  '"'■supplement  to  an  act,  entitled 
an  act,  to  amend  an  act,  making  it  penal  to  alter  the  mark  of 
an  unmarked  hog."  The  solecism  was  at  least  as  great  in  one 
case  as  in  the  other ;  our  act  of  the  1 7th  Feb.  1 762,  has  alter- 
ed that  phraseology,  by  saying  that  the  "  same  shall  be,  and 
remain  a  public  green  and  walk  forever.^'' 


An  enquiry  into  the  causes  of  that  obloquy,  under  which  the 
supreme  court  of  this  state  laboured  from  the  year  1800,  down, 
during  a  period  of  several  years. 

This  was  owing  to  several  causes  ;  I  shall  begin  with  the 
•weakest,  and  conclude  with  the  strongest, 

Istly,  The  supreme  court  itself,  consisting  of  yj?«r,  three 
of  these  were  so  connected  by  ajjlnities,  that  they  seemed  to 
be  but  one  person.  For  it  is  necessary,  not  only,  that  judges 
be  independent  of  the  people  to  a  certain  extent,  but  also, 
for  the  public  confidence,  that  they  be  independent  of  each 
other*  Affinity,  and  habits  of  close  connexion,  cannot  but 
beget  a  suspicion  of  such  resignation  of  individual  opinion,  as 
to  be  unfriendly  to  the  freedom,  and  voluntary  exercise  of 
individual  judgment.  There  is  such  a  thing  as  even  a 
•weaker  brother,  or  assistant  judge  in  all  tninisterial  matters 
at  least,  managing  the  arrangement,  and  not  without  influence 
by  address,  and  representation  in   conciliating  a  determina- 


Law  Miscr.r.LANiEs.  283 

tion  to  his  way  of  thinking  even  in  matters  of  a  judicial  na^ 
ture. 

For  these  reasons  I  did  think,  and  now  think  with  the 
public,  without  intending  the  least  reflection  upon  the  cha- 
racter of  the  judges,  that  the  circumstance  of  a  seeming  at- 
tachment from  family  considerations  with  some  of  them,  how- 
ever accidental  it  may  have  been,  and  not  the  result  of  intrigue 
w^ith  the  governor,  that  so  many  of  a  connexion  having  got 
upon  the  bench,  was  a  drawback,  if  I  may  use  a  mercantile 
phrase,  on  the  confidence  of  the  public  with  regard  to  the 
judges  who  composed  the  bench  at  that  time.     But, 

2dly ;  What  was  perhaps  a  more  obvious  circumstance, 
the  same  three  of  the  four  were  from  wealth  and  connexio7iy 
and  supposed  political  way  of  thinking,  all  of  the  aristocracy 
of  the  commonwealth.  For  the  two  natural  divisions  of  so- 
ciety are  into  the  few  and  the  many  ;  or  the  aristocracy,  and 
democracy  under  whatever  name  it  may  be  disguised,  or 
whatever  character  it  may  assume.  I  will  not  say  that  the 
judiciary  power  is  not  safely  lodged  in  any  case  with  that 
which  may  be  deemed  of  the  aristocracy  of  the  state ;  but  in 
general,  I  do  not  approve  of  it  without  such  a  due  admix- 
ture, as  will  approximate  to  the  common  people.  It  is 
impossible  that  a  man  of  wealth  and  powerful  connexions, 
should  not  consider  these  of  better  mouldy  or  meliore  luto 
than  the  bulk ;  and  have  a  leaning,  perhaps  imperceptible 
even  to  a  good  man,  in  favour  of  people  that  keep  carriages, 
and  who  entertain,  and  are  entertained  by  him.  It  will  be 
observable  if  not  in  an  individual  case,  yet  at  least  in  a  tone 
of  mind  disposed  to  wind  up  the  construction  of  statutes, 
favourably  to  the  inequality  of  estates  and  conditions.     But, 

3dly ;  The  arrangement  of  their  own  services.  It  was  a 
radical  error  that  the  whole  four  judges,  suffered  themselves 
to  be  occupied  a  considerable  part  of  their  time,  sitting  upon 
a  jury  trial.  It  was  a  monstrous  mis-application  of  their 
services,  or  arrangement  of  their  duties.  I  saw  the  error, 
and  knew  the  dissatisfaction  that  it  occasioned  both  with  bar 
and  country ;  but  though  remonstrating  to  the  court  them- 
selves, and  to  individuals  of  them  I  could  not  prevail  in  ef- 


S84(  Lavt  Miscellanies. 

fecting  an  alteration.  Each  admitted  the  evil,  but  no  change 
could  be  brought  about.  How  or  why  the  obstinacy  of  the 
habit  which  had  been  established,  I  may  suspect,  but  I  can 
hot  develope.  The  bar  have  always  to  me  disclaimed  any 
ap  irobation  of  it,  or  that  they  were  the  cause  of  its  continu- 
ance. But  be  it  as  it  may,  this  was  a  substantial  cause  of 
dissatisfaction  with  the  court,  producing  a  delay  in  trials. 
For,  as  four  men  cannot  walk  four  miles,  sooner  than  one 
man,  it  is  of  no  use  to  have  four  as  to  the  effect  of  expedi- 
ting the  journey.  The  truth  is,  it  was  a  source  oj^  great  de- 
lay, to  have  four  on  a  jury  trial.  A  paper  offered  in  evidence 
must  be  read  by  the  presiding  judge,  and  a  note  taken  of 
it.  It  then  comes  to  the  second  who  must  read,  and  note  al- 
so ;  and  to  a  third,  and  a  fourth  who  has  the  same  right  to 
read  and  note  ;  and,  if  he  does  not,  at  least  read,  he  is  under 
a  disadvantage  in  understanding  the  cause.  By  the  time  it 
came  to  a  fourth,  which  was  my  place,  I  found  by  both  bar, 
and  country,  such  an  impatience  at  the  vexatious  delay,  that 
I  was  led  to  dispense  v.rith  looking  at  it  at  all ;  and  to  content 
myself  with  catching  the  substance  from  the  argument  of  the 
counsel,  or  the  hearing  it  cursorily  read  by  them,  without  see- 
ing- it,  which  at  all  times  fixes  the  impression  of  the  contents 
more  forcibly  upon  the  mind. 

Segnius  irritant  animtim  demissa  per  aures 
^fa7n  quae  sunt  occiilis  subjectajidelibus. 

It  happened  that  the  two  assistants  immediately  preced- 
ing me,  took  notes  at  gi-eat  length,  so  that  in  copying  a  pa- 
per, there  seemed  to  be  no  end.  The  delay  of  trials,  there- 
fore, by  this,  and  other  means,  was  a  great  cause  of  dissatis- 
faction with  the  administration  of  justice.  I  say  other  means  ; 
because,  the  trial  was  protracted  by  the  taking  nstes  at  great 
length  of  the  testimony  of  witnesses  ;  and  there  was  a  con- 
stant cry  of,  "  wait  until  I  take  that  down,"  expressed  by  bar,, 
or  court. 

The  bringing  many  books,  and  reading  cases  at  great 
length,  was  another  means  of  the  delay  of  trials  ;  together 
with  the  long  comjnents  made  by  counsel  on  the  application  of 
the  authorities.     But  I  come  now  to  a 

4th,  Or  greater  cause,  than  all  these  ;  the  constitution  of 


Law  Miscellanies,  5a& 

-circuit  courts.  These  had  succeeded  to  the  nisi  pnus  courts, 
and  were  of  the  same  nature,  save  that  judgment  could  be  ren- 
dered^  at  these  courts,  but  subject  to  revision  in  term.  It  was 
the  arrangement  that  two  Judges  sat  on  trials  at  these  courts  ; 
though  not  made  necessary  by  the  act  under  which  these 
courts  were  constituted.  This  was  unnecessary,  and  injudi- 
cious, being  subject  in  some  degree  to  the  same  inconvenience 
with  four  sitting  at  nisi  prius,  in  the  city  and  county  of  Phi- 
ladelphia. The  time  and  services  of  the  judges  could  have 
been  distributed  singulatim  on  jury  trials.  The  augmenta- 
tion of  judges  to  this  extent,  prevented  the  dispatch  of  busi- 
ness ;  for  one  could  dispatch  a  trial,  at  least  in  the  same 
time  with  two  ;  and  hence  there  was  less  business  done  by 
half  than  might  otherwise  have  been  done.  But  taking  the 
number  of  judges  into  vieAV,  it  was  impracticable,  with  any 
arrangement  that  could  be  made,  to  give  satisfaction  to  the 
country,  under  the  constitution  of  the  circuit  or  country  nisi 
prius  courts.  Of  the  greater  number  of  causes  depending, 
but  few  could  be  tried  in  the  course  of  the  time  allotted  for  a 
county,  and  much  time  could  not  be  allotted  for  twenty  six 
or  thirty  counties.  But  as  all  the  suitors  must  have  a  chance 
of  having  their  actions  brought  forward,  all  must  be  put  down 
for  trial ;  and  xuilnesses  summoned,  and  attending  in  the  res- 
pective cases.  This  made  it  a  matter  of  great  expence  to  the 
parties,  and  it  was  a  source  of  great  pain  to  the  judges  to  be 
under  the  necessity,  though  but  little  prospect  of  reaching  a 
case,  to  detain  suitors,  and  witnesses  for  the  trial.  For  an 
action  could  not  be  continued  over  until  another  sitting,  with- 
out the  consent  of  both  parties.  And  the  court,  consistent 
with  their  duties  elsewhere,  could  not  sit  more  than  once 
in  the  year.  In  fact  it  was  an  absurdity  in  the  constitution  of 
the  court  to  be  bringing  judges  from  a  distance  to  each  coun- 
ty of  the  state  to  try  rc^^XXt^rs  oi  fact,  which  could  not  be  sup- 
posed to  be  in  contemplation  by  the  new  constitution,  under 
which,  districts^  were  established  ;  and  a  president,  a  legal 
character,  was  appointed  to  preside.  Nisi  prius  courts  had 
been  continued  for  some  time  after  the  framing  and  adopting 
the  constitution;  but  this  was  an  incoiisistencu  with,  the  pro- 
vision which  had  been  introduced  ;  and  which  had  rendered 
it  unnecessary,  when  carried  into  effect.     At  a  circuit  court, 


286  Law  Miscellanies. 

it  was  found  impossible  to  send  away  suitors  satisfied,  by- 
having  their  causes  tried,  when,  from  the  multiplicity  of  ac- 
tions on  the  docket  at  a  circuit  court  once  a  year,  but  a  few 
could  be  tried ;  and  the  people  not  discerning  always  what 
prevented  it,  laid  the  blame  upon  the  judges.  It  would  re- 
quire twelve  judges,  one  of  these  holding  a  circuit  or  nisi 
prius  court,  every  three  months,  to  keep  down,  or  discharge 
the  business  without  delay  through  the  state.  The  system  is 
much  preferable,  of  district  judges,  with  writs  of  error  to  a 
court  of  the  last  resort.  Presidents  alternating  with  each 
other  in  adjoining  districts,  under  some  regulation,  might  be 
an  improvement.  But  in  that  case  it  would  be  unreasonable 
not  to  allow  journey  expences  according  to  the  extra  riding. 
Something  of  this  nature  has  been  done  in  a  particular  case, 
but  provision  ought  to  be  made  by  a  general  law,  to  a  certain 
extent^  in  all  cases.     But,  a 

5th,  And  leading  cause  of  that  obloquy  under  which  all 
courts  of  justice,  and  the  supreme  court  especially,  laboured 
from  1800  down,  was  to  be  found  in  the  temper  of  the  times. 

The  pressure  of  the  preceding  causes,  had  been  felt  by 
the  people,  joined  to  others  more  latent,  and  of  a  personal 
nature,  so  far  as  respected  manners ;  and  there  was  an  unea- 
siness,  and  struggle  to  throw  off  the  whole  judiciary.  With 
a  certain  description  there  was  a  struggle  to  throw  off  the  lato 
altogether.  This  was  the  case  pretty  generally  with  those 
editors  of  journals,  who  had  been  in  the  habit  of  arraigning 
characters  at  their  bar,  and  did  not  much  relish  there  being 
an  appeal  to  the  courts  of  law,  in  cases  of  libel.  The  common 
law  itself,  therefore,  became  a  subject  of  defamation ;  and 
batteries  were  erected  in  every  county ;  and  gazettes 
playing  upon  it  in  every  direction.  What  was  common 
law,  seemed  to  be  uncertain,  and  could  not  be  understood. 
No  one  likes  the  restraint  of  law.  The  idea  is  always  popu- 
lar and  pleasing,  to  be  able  to  do  without  it.  The  language 
of  John  Cade,  in  Shakespeare,  is  much  the  same  with  the  po- 
pular and  prevailing  sentiments,  at  a  certain  period  in  Penn- 
sylvania. 

Even  learning  itself  began  to  be  considered  as  a  disqua- 
lification for  office ;  at  least  for  the  legislature. 

So  far  as  respected  law  it  seemed  to  be  pretty  generally 


Law  Miscellanies.  2B7 

the  opinion  that  it  could  be  dispensed  with  in  the  decisions 
of  questions  of  property;  indeed,  in  every  matter  of  de- 
mand, or  even  trespass,  unless  with  some  reservation  of  ap- 
peal in  certain  cases,  the  idea  was,  that  good  sense^  without  a 
knowledge  of  legal  rules,  might  suffice.  Hence  the  increase 
of  the  jurisdiction  of  the  justices  of  the  peace;  and  the  system 
of  arbitrations. 

The  then  governor,  who  had  been  chief  justice  of  the 
state,  undertook  to  stem  these  innovations  as  unconstitutional. 
This  naturally  led  to  the  meditating  a  change  of  tlie  constitu- 
tion itself.  It  requires  great  judgment  and  knowledge  of  the 
popular  current  in  favour  of  what  is  called  reform^  to  know 
how  far  to  stem  it,  or  how  far  to  fall  with  it,  until  its  force  is 
spent.  Where  a  reform  is  really  judicious  to  a  certain  ex- 
tent ;  if  it  is  resisted,  short  of  that  extent,  it  swells  to  a  tor- 
rent, and  goes  to  a  greater  excess  than  it  would  otherwise 
have  done.  The  people  would  have  the  jurisdiction  of  the 
justices  encreased;  and  arbitrations  introduced,  that  they 
might  make  the  experiment.  I  was  for  having  it  done  ;  and 
was  sorry  that  any  impediment  or  obstruction  was  thrown  in 
the  way.  I  well  knew  that  the  rage  would  satiate  itself,  and 
on  experiment  what  was  found  salutary,  would  be  retained; 
and  what  was  otherwise  would  be  amended  or  abrogated.  I 
could  pretty  well  see  where  it  would  ultimately  rest;  and  that 
would  not  be  far  from  where  it  began,  as  to  arbitrations.  Tlie 
single  amendment  that  I  saw  necessary  in  the  law  as  to  arbi- 
tration, was  this,  that  at  the  instance  of  the  defendant  on  the 
return  of  the  writ  into  court,  a  rftrence  niight  he  ordered  bv  the 
tovrt  to  be  conducted  under  their  direction.  And,  at  the  dis- 
cretion of  the  court  themselves,  in  any  case,  where  a  cauf;e  ap- 
peared proper  for  a  reference^  it  should  be  ordered.  This 
would  take  place  chiefly  in  matters  of  account ;  or  in  contro- 
versies of  lesser  moment. 

I  am  favourable  to  the  increase  of  the  jurisdiction  of  the 
justices  ;  and  perhaps  from  ihc  depreciation  of  the  circulating 
medium,  it  might  be  still  farther  augmented.  Be  that  as  it 
may,  I  consider  it  much  more  favourably  than  I  do  an  inde- 
finite reference  to  arbitratioji. 

A  discontent  with  the  judiciary  branch,   would  seem    in 


288  Law  MiSCELLANIESr 

some  measure,  to  ha\  e  subsided.  The  chief  justice^  at 
least^  is  above  all  exception.  The  delay  in  the  admini- 
stration of  justice,  which  as  we  have  pointed  out,  was  a  great 
cause  of  it,  has  been  in  part  removed.  By  an  act  of  24th  Fe- 
bruary, 1806,  it  was  provided  that  "no  circuit  court  of  the 
supreme  court,  shall  be  held  otherwise  than  by  a  */w^/^^"w«^e. 
By  this  act  also,  the  high  court  of  errors  and  appeals^  which 
was  also  a  cause  of  delay,  was  suspended^  so  as  to  sustain  no 
new  cause  ;  but,  with  a  power  to  hold  two  terms  at  which  all 
the  causes  then  before  them  should  be  determined  and  where- 
upon the  said  court  should  be  abolished." 

By  an  act  of  the  llth  March,  1811,  circuit  courts  were 
abolished,  which  had  been  a  distressing  grievance  to  the 
judges  of  the  supreme  court,  and  a  great  ground  of  delay  of 
trials,  and  consequent  dissatisfaction  of  the  country.  By  this 
act  it  was  provided  that,  no  issues  in  fact  should  be  tried  in 
bank;  a  thing  which  the  judges  of  the  supreme  court  them- 
selves, as  I  have  already  pointed  out,  ought  long  before,  to 
have  corrected,  and  which  they  had  the  power  to  do. 

By  the  act  of  24th  February,  1806,  the  state  had  been  di- 
vided into  two  districts  of  the  supreme  court,  called  the  East- 
ern and  Western:  And  by  act  10th  April,  1807,  a  middle  dis- 
trict was  established.  And  now  by  the  act  of  llth  March, 
1811,  two  new  district  terms  were  added;  so  that  so  far  as 
respected  the  hearing  causes  in  Bank,  justice,  if  not  brought 
home  to  every  Irian's  door^  must  be  said,  at  least,  to  be 
brought  nearer  to  it.  All  these  were  great  improvements; 
for  writs  of  error,  to  a  court  in  Bank  at  Philadelphia,  were 
to  a  great  part  of  the  state,  but  a  mere  illusion^  and  a  navxe. 
And  yet  before  these  terms  were  established,  writs  of  error 
could  ly  only  to  that  in  Philadelphia,  for  it  was  the  term  for 
the  whole  state.  For  this  reason^  a  case  at  nisi  prius^  in  the 
retuote  counties  especially^  not  appealed  from^  founds  but  little 
presumption  of  an  acquiesceiice  in  the  law  decided.  And  hence 
nisi  prius  decisions  in  PeJinsyhania  are  of  the  less  weight. 
The  great  bulk  of  these  referred  to  in  Smitfi's  edition  of  the 
laws^  ought  to  pass  for  nothings  except  so  far  as  to  give  in- 
formation as  to  a  knowledge  of  the  history  of  the  law^  and  the 
way  of  thinking  of  individual  judges. 


Law  Miscellanies.  289 

By  an  act  of  the  30th  March,  1811,  "  the  district  court 
for  the  city  and  county  of  Philadelphia,"  was  established ;  to 
take  jurisdiction,  "where  the  sum  in  controversy  shall  ex- 
ceed one  hundred  dollars,"  and  to  which  court,  "  all  suits, 
and  causes  depending  in  the  court  of  common  pleas  of  the 
city  and  county  of  Philadelphia,  where  the  sum  in  contro- 
versy exceeds  one  hundred  dollars  shall    be  transfered,  and 
the  original  jurisdiction  of  the  said  court  of  common  pleas  of 
the  city  and  county  of  Philadelphia  where  the  sum  in  contro- 
versy exceeds  one  hundred  dollars,  shall  thenceforth  cease  and 
determine."    This  gave  great  relief  to  the  court  of  common 
pleas,  and,  by  such  tail  race^  so  to  speak,  the  wheel  of  this  court 
continued  no  longer  to  wade^  as  the  phrase  of  the  millers  is.  It 
is  farther  provided  by  this  act,  "  that  no  suit  shall  be  removed 
from  the  district  court  by  certiorari,  or  habeas  corpus ;  but, 
that  in  all  cases,  the  final  judgment  of  the  said  district  court 
may  be  examined  and  affirmed,  or  reversed  on  a  writ  oj  errof 
Jrom  the  supreme  courts     By  this  provision,   a  great  relief 
is  given  to  the  supreme  court^  lessening   the   number  of   tri- 
als at  nisi  prius,  so  as  to  present  a  prospect  of  the  wheel  of 
that  court,  no  longer  continuing  to  wade  also.     For  though 
there  is  a  sufficiency  of  business  for  the   nisi  prius  of  the 
supreme  court,  even  sitting  35  weeks    in  the  year  which  is 
prescribed  by  law,  yet  it  is  in  the  power  of  the  court  by  this 
means  to  keep  the  business  pretty   well   done,  and  we  hear 
now  of  little  or  no  complaint  of  the  delay,  which  has  been  just- 
ly termed  a  denial  of  justice  ;    for  it  is  a  denial  to  a  certain 
extent.     All  things  considered,  the  system  of  the  judiciary 
establishment  in  Pennsylvania,  is  the  best  in  the  union,  but 
is  even   yet  susceptible    of   some  amendments.     As  I  have 
already  hinted,  one  of  these  is,  the  reducing  the   number  of 
counties  in  some  of  the  presidential  districts  to  the  constitu- 
tional limit  of  three.     It  is  preposterous  that  there  be    four, 
five  or  six  counties  in  a  mountainous  district ;  and  not  more 
than  three,    in  some  cases,  in  the   level  country,  and  where 
the   seats  of  justice   are  more  adjoining.     It  is  an  unequal 
distribution  Jor  the  same  salary.       The  earliest   attention  of 
the  legislature,  ought  to  be  drawn  to  this ;    more  especially 

O  o 


290  Law  Miscellanies. 

as  in  the  mountainous  country  of  the  wesfetti  districts,  a 
greater  croud  of  business,  from  ejectments  depending,  has 
been  thrown  upon  the  dockets,  from  the  abolition  of  the  cir- 
cuit courts.  It  is  what  reflects  much  credit  upon  the  late 
and  present  administration  of  the  state  government,  that  the 
attention  of  the  legislature  has  been  so  much  drawn  to  amend- 
ments, both  of  the  Judicial  codes,  and  judiciary  system  ;  and 
though  sometimes  touched  unskilfully^  in  the  opinion  of  sci- 
entific men;  j'et,  no  question  can  be  raised^  but  that  a  dispost- 
tion  has  been  shewn  to  do  what  was  for  the  best. 


On  the  Naturalization  Laws  of  Congress,  and  the  principle  in- 
volved in  the  right  of  expatriation. 

CAN  the  subject  of  a  foreign  power,  be  detained  con- 
trary to  his  subjection  ?  It  would  be  immotal  to  detain  a  bale 
of  clofh ;  and  why  the  property  of  a  man  ?  But  is  he  de- 
tained by  our  naturalization  laws  ?  It  might  not  be  immoral 
were  we  only  to  refuse  the  aid  of  our  municipal  law,  for  the 
apprehending  and  delivering  him  to  his  sovereign.  But  do 
not  our  naturalization  laws  oblige  us  to  go  farther ;  and  to 
protect  him  against  the  claim  of  his  sovereign  demanding 
him  ?  That  cannot  but  be  implied;  for  allegiance  and  pro- 
tection are  reciprocal. 

But  it  cannot  be  construed,  it  will  be  said,  as  going  fur- 
ther than  to  protect  while  under  our  municipal  law.  But  the 
going  that  length  must  imply  that  he  is  his  own  property, 
and  may  be  protected,  at  least,  to  that  extent,  against  the 
claim  of  his  sovereign.  As  to  the  protecting  him  while  in 
our  service,  and  out  of  the  municipal  jurisdiction,  can  in- 
volve a  question  of  power  only,  not  of  right.  If  we*have  a 
rtsrht  to  protect  him  while  under  our  municipal  law,  we  have 
a  right  to  protect  him  while  out  of  it,  and  on  the  high  seas  if 
we  can  do  it.  The  allegation  therefore  is  idle,  that  there  is 
a  distincf'on  in  the  case,  betrveen  the  right  to  protect  within 
our  municipal  Jurisdiction^  and  out  of  it. 


Law  Miscellakies.  &9t 

But  our  right  to  protect  to  any  extent  must  depend  upon 
the  right  of  the  naturaliz;id  to  withdraw  hi.nself  from  his  alle- 
giance ;  or,  in  other  words,  expatriate  hinself.  Do  not  we 
sanction  therefore,  this  right  or  claim  of  a  right  to  expatriate 
himself,  when  we  receive  the  abjuration  of  his  allegiance, 
and  admit  him  to  become  a  citizen  ?  We  expressly  exact 
from  him  that  he  shall  "  absolutely  and  entirely  renounce 
and  abjure  all  allegiance  and  fidelity  to  every  foreign  prince, 
potentate,  state  or  sovereignty  whatever,  and  particularly  by 
name,  the  prince,  potentate,  state  or  sovereignty  whereot  he 
was  before  a  citizen  or  subject.''^  See  the  naturalization  acts, 
and  particularly  that  of  the  14th  Ap.  1802. 

If  it  was  an  immoral  act  in  the  naturalized  to  do  this  ;  if 
it  was  contrary  to  his  duty  political  or  moral ;  are  we  altoge- 
ther just,  and  free  from  blame,  who  receive  the  abjuration  ? 
Are  we  not  rather  to  be  considered  in  the  light  of  a  particeps 
criminis  and  partakers  of  his  guilt  ?  His  precedent  obliga- 
tion to  his  sovereign  or  country,  if  we  can  suppose  an  inex- 
tricable obligation  to  exist,  must  render  the  taking  such  an 
oath,  immoral ;  and  as  it  could  not  be  taken  to  us  unless  we 
accepted  it,  we  are  at  least  instrumental,  as  the  phrase  is,  to 
this  breach  of  obligation.  I  do  not  just  say  in  th«  language 
of  Hudibras 

'  A  breach  of  oath  is  duple. 


And  cither  way  admits  a  scruple 
And  may  be  ex  parte  of  the  maker 
More  criminal  than  the  injured  taker  i 
For  he  that  strains  too  far  a  vow 
Will  break  it  like  an  o'er-bent  bow. 
And  he  that  made  and  forc'd  it  broke  It, 
Not  he  that  for  convenience  took  it. 

But  the  protecting  him  against  the  precedent  obtigation^ 
whether  at  home  or  abroad,  must  bring  us  clearly,  and  on 
every  principle  of  law  natural^  moral,  or  pol  tical,  under  the 
denomination  of  his  offence  as  accessaries  or  as  principals^  Or 
if  ws  dlttinpcuiih,  it  is  at  least  the  holding  out  an  induct  ment, 
axj^  taking  benefit  from  the  iniquityy  if  we  do  not  procure  it- 


292  Law  Miscellanies. 

In  law  there  is  a  distinction  between  the  stealing  and 
the  receiving'  stolen  goods  j  but  in  morality,  the  distinc- 
tion can  only  be  in  the  degree  of  guilt.  The  nature  of  the 
crime  is  the  same.  The  one  may  bespeak  more  hardihood, 
or  address,  but  the  minds  of  both  are  equally  depraved  and 
regardless  of  social  duty.  The  subject  naturalized  robs  his 
country  of  himself  or  steals  himself  horn  it ;  and  we  partici- 
pate in  the  robbery  or  stealth. 

In  order  then  to  justify  our  naturalization  laws  and  make 
them  honourable,  it  becomes  necessary  to  assert  the  right  of 
expatriation.  It  becomes  necessary  to  do  more  ;  to  assert  it 
even  in  the  face  of  a  nation,  or  of  those  nations,  a  principle 
of  whose  laws,  it  is,  that  a  citizen,  or  svh'^cct  cannot  expatri- 
ate himself  This  is  the  case  particularly  with  England,  in 
whose  case  no  exception  is  made  ;  and  it  is  notorious  that  we 
receive  the  naturalization  of  subjects  of  that  power. 

But  if  we  assert  the  right  of  exuere  Hgeantiam  in  the 
case  of  British  subjects,  can  it  be  made  any  question  whe- 
ther such  a  right  exists  with  ourselves  in  these  states,  I 
mean  the  right  to  put  off  or  strip  ourselves  of  our  allegiance. 
If  a  British  subject  has  a  right  notwithstanding  the  principle 
of  his  law,  can  it  be  a  question  in  our  case  with  regard  to 
whom  it  may  be  a  question,  whether  such  a  principle  of  the 
common  law,  was  carried  with  us  in  our  emigration  from 
that  country.  It  is  a  .principle  at  least  of  the  European 
country,  from  whence  our  emigration  chiefly  has  come ; 
and  it  is  in  the  face  of  this  principle  that  we  undertake  to  na- 
turalize. Can  we  justify  this,  upon  any  ground  but  by  say- 
ing that  the  principle  is  contrary  to  natural  right,  and  that 
we  will  not  regard  it.  If  locally  unreasonable,  and  unjust 
with  these  countries,  can  it  be  reasonable  or  just  here  ?  Can 
it  be  expedient  in  those  countries,  when  we  must  attack  even 
that  foundation  in  saying  that  it  is  unjustifiable  ?  To  what 
would  I  bring  my  argument  ?  It  is  to  those  who  question 
the  right  of  expatriation  from  these  states ;  who  allege  that  it 
is  a  principle  of  the  common  law  which  we  have  carried  with 
lis  to  thi'se  early  colonics;  and  recognized  by  our  laws  and 
institutions ;  particularly  the  laws  of  those  states,  and  in  par- 


Law  Miscellanies.  293 

ticular  Pennsylvania,  who  have  expressly  recognized  the  in- 
troduction of  the  common  law  v/ithout  an  exception  of  this 
principle ;  and  the  exclusion  of  which  can  be  maintained  only 
on  the  ground,  that  colonists  carry  with  them  only  so  much 
of  the  common  law  as  is  applicable  to  their  sitiiatio7i.  I  bring 
my  argument  also  to  that  decision  of  the  judges  of  the 
supreme  court  of  the  United  States;  or  of  any  of  them, 
who  have  questioned  the  right  of  the  citizens  to  expatriate, 
and  throw  oft'  their  allegiance,  under  any  circumstances,  and 
in  any  case  or  at  any  time.  The  naturalization  laws  must  be 
repealed  or  the  right  must  be  asserted. 
■  It  may  be  said  that,  in  the  act  of  naturalizing,  it  is  un- 
derstood, or  ought  to  be  understood,  that  the  naturalized 
person  is  to  be  considered  as  intitled  to  the  protection  of  the 
laws  only  while  here  ;  to  the  rights  of  a  citizen  but  still  lia- 
ble nevertheless  to  the  de?nand  of  his  sovereign  ;  and  to  be 
surrendered  when  demanded.  Be  it  so,  that  it  is  so  to  be 
understood  by  the  U.  S.  naturalizing,  and  the  person  natu- 
ralized, which  is  not  the  fact,  but  suppose  it  so,  would  it  not 
be  adepartui'e  from  the  duties  of  one  good  neighbour  to  ano- 
ther, and,  as  in  common  life,  a  cause  of  dissatisfaction,  if 
not  of  litigation,  so  between  nations  a  cause  of  war,  and  a 
just  cause  of  war,  to  harbour  runaivays  from  the  service  of 
each  other,  not  of  A/refl?  persons  only,  but  of  servants  for  life. 
And  still  more  to  entice,  and  seduce  from  service,  by  confer- 
ing  on  them  every  privilege  of  one  born  in  the  family  ? 
The  truth  is,  the  right  must  be  asserted  in  its  germ  and  pro- 
gress, or  the  naturalization  laws,  must  be  modified,  or  repeal- 
ed altogether.  They  certainly  must  have  proceeded  on  the 
ground  that  every  individual  in  every  political  society,  has 
a  natural,  and  political  right  to  leave  it  except  during  war. 
And  this  exception  is  expressly  made  by  the  naturalization 
act  "That  no  alien  who  shall  be  a  native  citizen,  denizen  or 
subject  of  any  country,  state,  or  sovereign  with  whom  the 
U.  S.  shall  be  at  war  at  the  time  of  his  application,  shall  be 
then  admitted  to  be  a  citizen  of  the  U.  S." 

I  do  not  enter  into  the   question  how  far  the  principle  of 
the  nemini  liget  exuere  ligeantiam,  is  founded  in  reasoij, 


2ii'4  La-w  Miscellanies. 

political  conveniency,  or  original  compact,  or  general  oon-? 
sent.  But  looking  at  it  in  relation  to  the  naturalization  law 
it  is  evident  that  both  cannot  stand  together ;  one  or  th« 
other  must  go  by  the  board. 


SINCE  writing  the  above,  it  came  into  my  mind  to  sec 
whether  1  could  not  throw  out  a  few  hints  on  the  subject  of 
the  right  of  expatriation,  and  consequent  naturalization, 
which  is  founded  upon  it. 

I  call  these  hints^  because  I  cannot  undertake  a  formal 
dissertation,  not  having  either  leisure^  or  abilities  to  do  the 
subject  justice.  Does  not  nature  seem  to  point  outthe  right 
from  what  we  see  even  in  the  inanimate  world?  The  tide 
ebbs  and  flows;  and   *■'■  the  wind  bloweth  whence  it  listeth^* 

It  is  essential  to  the  salubrity  of  the  waters,  and  of  the 
atmosphere,  that  there  be  a  current. 

In  the  vegetable  world,  seeds  and  plants  are  said  to  flou- 
rish by  a  change  of  soil. 

In  the  amwia/ kingdom  we  hear  of  crossing  the  strain  in 
order  to  improve  the  breed.  The  human  species  is  said  to 
degenerate  both  in  physcial  and  moral  qualities,  by  the  in- 
ter-marriage of  near  relations.  Dwarfs  and  idiots^  after  a 
length  of  time,  have  been  observed  to  be  the  offspring  :  If 
so,  in  a  degree,  the  eflPect  will  be  the  same  where  the  society 
is  small^  the  cause  being  the  same. 

But  be  these  things  as  they  may,  there  can  be  no  ques* 
tion  but  that  the  civilization  of  man,  and  his  intellectual  im- 
provement must  be  assisted  by  a  free  ingress,  and  egres» 
from  one  people  to  another.  The  collision  polishes,'  the 
communication  of  ideas  improves  the  understanding.  Arts 
and  sciences  are  not  the  invention  of  one  man  ;  but  of  many  ; 
aor  are  they  brought  to  perfection  by  one  nation;  but  by  ma- 
ny ;  and  that  through  successive  generations  of  men  upon  the 
earth.  If  a  denial,  therefore,  of  the  right  of  expatriation  con- 
travenes the  physical,  and  moral  improvement  of  the  spe- 
cies, and  the  amelioration  of  thi*  condition  of  man,  it  mu$:fc 
lie  the  voice  of  nature  that  such  right  exists» 


Law  MiscELLANiEa.  295" 

What  is  there  against  it,  but  the  obligation  due  to  a  pa' 
rent  and  to  country  P  But,  it  must  depend  upon  the  ques- 
tion, what  Will  contribute  to  the  greater  sum  of  happiness  to 
the  species.  For  the  general  result  must  determine,  the  par- 
ticular right.  The  lesser  must  give  way  to  the  greater. 
Much  may  be  said,  in  favour  of  the  obligation  due  to  the  pa- 
rent ;  and  it  will  be  just  as  easy  to  shew  that  the  subser- 
viency of  the  whole  life  is  due,  as  that  it  terminates  at  the 
years  of  maturity,  or  21 :  or,  that  a  parent  has  the  right  to 
inflict  death,  as  he  gave  life :  and  the  Roman  law  gave  this 
power  to  a  father.  But  this  would  be  taking  matters  in  an 
extreme  to  which  no  one  could  consent ;  or  rather  at  which 
every  mind  would  revolt.  But  what  is  there  to  limit  the 
right  if  we  take  it  on  the  footing  of  obligation  ?  I  know  of 
nothing  but  the  consideration  stated,  the  happiness  of  the  indi- 
vidual, and  of  the  whole. 

The  same  thing  in  the  case  of  that  claim^  or  rights  if  you. 
chuse  to  have  it  so,  which  the  society  has  over  all  that  are 
horn  under  it.  It  must  be  determined  not  on  the  principle  of 
obligation ;  but  of  the  greater  general  good  to  the  species. 

I  had  conceived  an  early  prejudice  against  this  claim  in 
the  case  of  Patkul,  put  to  death  by  Charles  12th  of  Sweden, 
on  the  ground  of  the  ne  exuere  Itgeantiam^  notwithstanding 
he  had  been  30  years  in  the  service  of  the  Emperor  of  Rus- 
sia. 

M'Donald's  case  also,  Foster's  Reports,  59,  served  to  im- 
press me  unfavourably  towards  this  as  a  principle  of  the  com- 
mon law.  He  was  a  native  of  Great  Britain,  but  "had  re- 
■reived  his  education  from  his  early  infancy  in  France ;  had 
sp'jnt  his  riper  years  in  a  profitable  emplovance  in  that 
kingdom  where  all  his  hopes  centered  "  Speaking  of  the 
doctrine  of  natural  allegiance,  the  counsel  in  his  case,  repre- 
sented it  as  a  slavish  principle  not  likdy  to  prevail  in  these 
times,  especially  as  it  seemed  to  derogate  from  the  princi- 
ples of  the  revolution.  This  feeling  was  strengthened  by  a 
course  of  thinking  on  the  one  side,  from  our  situation,  and 
that  of  emigrants^  in  the  revolutionary  war  and  since.  I  had 
felt  a  predisposition,  before  I  undertook  to  throw  cut  these 
hints,  to  be  able  to  satisfy  myself,  that  this  principle  of  the 
•!ie  exuere,  might  be  found  t«  rest  o»  no  good    foundation. 


296  Law  Miscellanies. 

The  fact  is  that  I  had  become  reconciled  to  a  resistance  to 
it ;  and  there  is  no  question  with  me  as  to  the  rights  but  the 
power^  only.  And  I  believe  it  is  now  brought  to  such  a 
point  that  the  ultima  ratio  must  determine  it. 

It  will  not  be  understood,  that  I  mean  to  say  that  the 
cause  of  the  present  war,  or  the  continuance  of  it,  is  the  na- 
turalizing British  subjects,  though  it  may  have  led  to  it  on 
the  part  of  the  enemy,  and  is  the  pretence  for  continuing  it. 
For  whether  these  states  had  naturalized  or  not,  they  might 
employ  British  seamen,  or  it  might  be  alleged  that  they  did 
employ,  and  the  redress  as  they  would  call  it  by  the  act 
of  the  party  ^  in  the  law  phrase,  would  be  resorted  to;  which 
would  produce  the  consequence  of  taking  or  mistaking  the 
American  for  the  British  in  the  caption.  So  that,  unless  it 
is  left  to  be  a  matter  between  the  governments^  and  of  national 
investigation^  and  not  of  individual  interference,  it  will  be  im^ 
possible,  that  controversy  can  be  avoided. 


Of   certain  acts  of  congress,  and.  the  construction  put  upon 
those  acts  by  the  courts  of  the  United  States. 

By  an  act  of  4  Aug.  1790,  sect.  45.  it  is  prr)vided,  "that 
where  any  bond  for  the  payment  of  duties  shall  not  be  satis- 
fied on  the  day  it  became  due,  the  collector  shall  forthwith 
cause  a  prosecution  to  be  commenced  for  the  recovery  of 
the  money  thereon,  by  action  or  suit  at  law,  in  the  proper  court 
having  cognizance  thereof;  and,  in  all  cases  of  insolvency,  or 
where  any  estate  in  the  hands  of  executors,  and  administrators 
shall  be  insufficient  to  pay  all  the  debts  due  from  the  deceased, 
the  debt  due  to  the  United  States  on  any  such  bond,  shall  be 
first  paidy 

And  by  an  act  of  2d  May,  1 792,  sec.  1 8,  it  is  provided  that 
*'  the  cases  of  insolvency  in  the  preceding  act  mentioned, 
shall  be  deemed  to  extend,  as  well  to  cases  in  which  a  debtor 
not  having  sufficient  property  to  pay  all  his  or  her  debts, 
shall  have  a  voluntary  assignment  thereof  for  the  benefit 
of  his  or  her  creditors,  or  in  which  the  estate  and  effects  of 


Law  Miscellanies.  297 

an  absconding^  concealed,  or  absent,  debtor  shall  have  been 
attached,  by  process  of  law,  as  to  cases  in  which  an  act  of  le- 
gal bankruptcy  shall  have  been  committed." 

By  an  act  of  3d  March,  1797,  sec.  5,  it  is  provided  "  that 
where  any  revenue  officer.,  or  other  peirsons,  hereafter  becom- 
ing indebted  to  the  United  States,  by  bond,  or  otherwise, 
shall  become  insolvent ;  or  where  the  estate  of  any  deceased 
debtor,  in  the  hands  of  executors  or  administrators,  shall  be 
insufficient  to  pay  all  the  debts  due  from  the  deceased,  th'e 
debt  due  from  the  United  States  shall  be  Jirst  satisfied ;  and 
the  priority  hereby  established,  shall  be  deemed  to  extend, 
as  well  to  cases  in  which  a  debtor,  not  having  sufficient  pror 
perty  to  pay  all  his  debts,  shall  make  a  voluntary  assignmeift 
thereof;  or  in  which  the  estate  and  effects  of  an  absconding, 
concealed,  or  absent  debtor,  shall  be  attached  by  process  of 
law,  as  to  cases  in  which  an  act  of  legal  bankruptcy  shall  be 
committed." 

This  prerogative  assumed  by  the  United  States  is  alleged 
to  be  founded  on  sec.  8  of  the  constitution  of  the  United 
States,  "  The  congress  shall  have  power,"  Sec. 

"  18  :  To  make  all  laws  which  shall  be  necessary,"  Sto. 
Now  I  am  not  one  of  those  who  have  been  for  stinting  these 
powers  so  much  as  has  been  contended  in  the  case  of  a  na- 
tional bank.  For  I  think  such  a  means  of  economy  is  abso- 
lutely necessary,  and  the  money  concerns  of  the  union  can- 
not well  be  transacted  without ;  at  least,  not  to  so  much  advan- 
tage for  the  general  good.  But  I  hold  it  not  necessary  /*& 
takeaway  tht>  property  of  an  individual  to  serve  the  covuniun- 
ty.  Is  it  not  taking  aruay  ?ny  property^  when  a  debt  due  to 
me  is  taken  awa}',  and  the  detnands  of  the  United  States  a- 
gainst  my  debtor  must  be  satisfied,  before  I  can  come  in. 
In  the  case  of  a  revenue  officer.,  it  might  be  justifiable  in  a 
case  where  I  have  trusted  him  after  he  had  been  appointed 
a  revenue  officer,  because  L  had  notice  that  he  had  been  so 
appointed,  and  it  was  at  my  own  risk,  and  with  a  knowledge 
of  this  privilege  of  the  United  States  that  I  gave  him  credit. 
But  having  given  him  credit,  before  he  was  an  offccr,  shall 
ih'Mfind  on  wl^ich   I  gave  hlni  credit  be  swallowed  up  by 

V  V 


*'9S  Law  Miscellanies. 

the  United  States  who  after  my  debt,  and  cause  of  action  had 
accrued,  had  thought  proper  to  appoint  him  such. 

But  the  act  goes  further  than  even  the  case  of  a  revenue 
officer  ;  it  extends  to  the  case  of  any  other  person  who  shall 
become  indebted  to  the  United  States.  Thus,  if  I  sell  a  tract 
of  lane',  to  an  individual,  transfer  property  of  any  description, 
or  contract  with  him  for  services,  and  render  it  whereby  a 
debt  becomes  due ;  and  for  which  I  may  even  take  his  obli- 
gation under  seal,  or  what  is  more,  have  brought  a  suit  and 
obtained  yw^^we/zf ;  yet  a  demand  of  the  United  States  Sub- 
sequently founded,  or  established,  will  take  a  priority ;  ot 
sxoeep  the  -whole  from  my  grasp.  I  have  been  informed  by 
the  very  gentleman  who  draughted  the  bill,  that  the  words 
other  person^  were  not  in  the  bill  as  originally  draughted ; 
but  were  put  into  it  as  it  passed  through  the  houses,  a  re- 
presentative observing  to  him  that  it  -would  all  have  enough 
to  do.  His  idea  was  that  such  a  provision  would  be  neces- 
sary. Necessitas  nullam  habet  legem,  is  a  maxim  as  ancient 
as  the  Latin  language ;  and,  that  necessity  has  no  law,  is  as  old 
as  good  English ;  and  even  in  old  Saxon  or  the  broad  Scotch, 
it  is  said,  needs  must  when  the  devil  drives.  But  what  is  there 
to  drive  to  this  ?  Has  not  the  congress  power  to  lay  taxes  ad 
libttwn?  Why  then  filch  away  from  an  individual  his  debt 
due  to  him,  for  the  sake  of  the  public  ?  It  is  the  prerogative 
of  the  king  of  Great  Britain  ;  but  how  came  it  to  be  that  of 
the  United  States,  unless  it  is  given  under  this  term  neces- 
sary P  It  is  not  given,  but  by  a  species  of  political  cowardice 
in  the  representatives^  taxes  are  avoided  because  the  laying 
of  these  might  affect  their  immediate  popularity.  The  indi- 
vidual xvroriged  has  but  one  mouth  to  exclaim  against  the 
injustice  ;  but  the  multitude  that  feel  taxation  to  which  they 
are  bound  to  submit  have  many  mouths.  The  representatives, 
for  the  time  being,  are  unwilling  to  lay  taxes  though  equal  on 
the  whole  community  ;  and  they  consult  the?nselves  at  the  ex- 
pence  of  Tom,  Dick,  and  Harry,  who  are  in  the  towns,  or 
in  the  woods  ;  and  whose  voice  individually  cannot  be  so 
much  heard.  They  are  in  the  habit  of  starting  at  the  word 
*ax,  like  Asmodeus,  at  the  smell  of  burnt  fish:  but  are  nor 


Law  Miscellanies.  299 

ihocked  at  the  bread  view  of  individual  injustke.  This  sec- 
tion of  the  act  ought  to  be  repealed  ;  and  the  provision  re^ 
strained  to  the  case  of  a  revenue  officer  trusted,  and  the  debt 
to  an  individual  which  became  due  before  the  appointment. 
This  is  the  farthest  that  the  act  of  the  legislature  of  the 
Union,  on  the  score  of  natural,  and  moral,  or  legal,  and  po- 
litical justice,  had  a  right  to  go.  Knowledge  to  all  the  citi- 
zens that  the  United  States  have  a  priority  of  lien  upon  all 
the  property  of  a  revenue  officer,  would  save  from  the  giv- 
ing him  credit,  or  if  given,  would  take  away  from  the  credi- 
tor in  such  case,  the  right  to  complain.  The  United  States 
have  it  in  their  power  to  exact  security  to  any  amount  from  a 
revenue  officer,  or  other  person  with  whom  they  may  con- 
tract ;  and  this  is  their  remedy  a  priore  against  delinquen- 
cies, and  not  a  posteriore,  the  relieving  in  a  case  of  default 
at  the  expence  of  a  citizen, who  is  in  common  with  the  whole 
body  politic  bound  to  contribute  his  proportion  to  the  ex- 
igencies of  a  peace  or  war  establishment.  It  cannot  there- 
fore be  necessary  to  take  the  property  of  a  citizen  in  this  way; 
and  if  not  necessary,  is  unjust.  Under  what  idea  but  that 
of  being  necessary  can  it  be  taken  ?  The  Congress  have  no 
power,  but  that  which  is  given  them.  They  have  no  common 
law  prerogative  as  in  the  case  of  the  kiijg  of  Great  Britain  ; 
or  which  the  commonwealth  of  a  state  may  exercise  where 
it  is  given  by  law,  because  that  law  has  the  assent  of  every 
citizen ;  or,  in  contemplation  of  law,  is  supposed  to  have  it. 
Though  even  in  this  case,  it  may  be  questionable.;  and  ought 
to  be  questioned.  In  the  state  of  Pennsylvania,  debts  due  to 
the  commonwealth,  instead  of  being  preferred,  are  postponed  ; 
and  much  to  the  credit  of  the  people  who  have  rejected  this 
badge  of  royalty,  as  uncongenial  xvith  a  republican  goveriiment. 
This  amendment  was  made  upon  the  former  law  of  an  ante- 
revolutionary  period  which  followed  the  common  law  in  the 
case  of  the  kingly  prerogative.  It  is  not  only  reasonable  that  ii 
a  loss  in  the  case  of  an  insolvent  debtor  is  to  be  borne,  it  should 
fall  upon  the  many  instead  of  falling  upon  one^  but  I  deny 
that  the  commonwealth  has  a  right  to  make  it  otherwise  ; 
for  the  property   of  one   individual  cannot  he   taken  anav. 


300  L,Av7  Miscellanies. 

withoTit  a  compensation.  And  a  preference  of  payment  in 
the  case  of  an  insolvent,  or  where  the  property  of  a  deceased 
person^  cannot  discharge  the  whole,  is  the  same  thing  as  tak- 
ing away  what  belongs  to  an  individual  without  giving  him  a 
compensation ;  yet  on  behalf  of  the  United  States  this  is 
claimed  as  a  right,  and  enacted  by  law.  Is  this  law  consti^ 
tutional  ?  There  can  be  no  doubt  of  the  right  to  enquire  into 
the  constitutionality  of  a  law  of  the  United  States.  For  the 
judiciary  of  the  union  admit  that  right,  and  exercised  it  them- 
selves. They  go  a  little  farther,  and  claim  the  right  of  en- 
quiring into  the  constltiitionality  of  a  law  of  a  state  :  witness 
the  case  of  Vanhorne  and  Dorance  where  a  law  of  the  state  of 
Pennsylvania  was  held  to  be  against  the  constitution  of  that 
state,  not  because  it  took  a%vay  property  without  giving  com- 
pensation, but  for  not  giving  it  in  money ;  though  by  the  com- 
mon law  of  England,  and  by  the  law  of  j  ust  retribution,  it  ought 
not  to  be  in  money  but  in  ki7id.  It  was  given  in  kind,  a  fee  for 
a  fee,  or  land  for  lafid.  But  if,  as  to  the  ?nedium  of  the  com- 
pensation, the  courts  of  the  union,  were  so  squeamish,  how  is 
it  that  they  have  overlooked  this  /aw,  which  takes  away  a 
right,  or  interest  in  a  debtor's  property,  and  makes  no  com- 
pensation ? 

But  the  fact  is,  that  instead  of  questioning  the  law,  they 
have,  by  their  construction,  extended  the  operation,  or  effect 
of  it.  So  far  from  questioning  the  law,  they  have  sanctioned 
the  application  of  the  maxim  to  the  case,  "  that  the  interest  of 
all  should  pfevail  over  that  of  an  individual^  3  Cranch,  82. 
This  maxim  is  true,  where  both  cannot  stand  together ;  but 
not  true  as  applied  in  this  case  ;  but  rather  the  idea  that  the 
public  has  a  broad  back,  and  ought  to  sustain  a  loss,  rather 
than  an  individual,  where  one  or  the  other  must  sustain  a 
loss:  divided  among  the  whole,  the  loss  of  &  particular  debt 
is  small,  but  may  be  ruinous  to  a  single  citizen.  But  by 
construction,  they  have  extended  the  operation  of  the  laws  of 
the  United  States,  on  this  head,  as  it  would  appear  to  me, 
beyond  what  either  the  letter^  or  the  spirit  would  require.  For 
t-liisi^.ce  the  argument  by  the  counsel,  for  the  defendant  in  er- 
ror, in  the  case  of  the  United  States  v.  Fisher  et  al.  2  Cranch, 


Law  Miscellanies.  301 

358.  The  observations  of  counsellor  IngcrsoU  on  the  head 
o[ prerogativeywith  us,  termed  privilege,  supersedes  all  that 
I  could  have  to  say,  in  stating  how  far  this  privilege  is  car- 
ried, even  beyond  that  of  the  kingly  prerogative  in  England. 
It  may  suffice  to  extract  a  few  of  his  observations.  "  It 
may  be  useful  (says  he,)  to  consider  the  prerogative  of  the 
Kings  of  England  in  this  particular,  at  the  least  liberal  pe- 
riod of  its  juridical  history,  where  unreasonable  preferen- 
ces of  the  sovereign  over  the  subject,  fdl  and  deform  its  every 
page.  By  the  statute  of  33  Hen.  8.  chap.  39.  sec.  74.  '■'-  his 
debt,  shall  in  suing  out  execution,  be  preferred  to  that  of  eve- 
ry other  creditor  who  hath  not  obtained  judgment  before  the 
king  commenced  his  suit,  3  Bl.  Com.  420.  Tiiis  only  n\akes 
the  commencement  of  the  king's  suit  equivalent  to  a  judg- 
ment in  favour  of  a  subject." 

"  The  king's  judgment  also  affects  all  lauds  v^^hich  the 
king's  debtor  hath  at,  or  after  the  time  of  contracting  his 
debt.  3  Bl.  Com.  420.  This  relates  to  lands  only.  The 
personal  estate  escapes  the  royal  grasp.  Even  there  the  dis- 
tinction for  which  we  contend  has  always  been  observed. 
The  preference  in  favour  of  the  king  is  principally  confined 
to  cases  where  public  monies  have  been  received  by  an  ac- 
countable officer  to  public  use.  It  does  not  extend  to  trans- 
actions of  a  common  nature." 

By  the  statute  of  1 3  Elizabeth,  chap.  4.  "  The  lands  and 
tenements,  goods  and  chattels  of  tellers,  receivers,  collectors, 
&c.  and  other  officers  of  the  revenue,  are  made  liable  to  the 
payment  of  their  debts." 

"  These  are  the  models  which  the  act  of  congress  was  in- 
tended to  imitate.  The  lands  of  such  revenue  officers  are 
liable  to  process,  under  the  king's  judgment,  even  in  the 
hands  of  a  bona  fide  purchaser;  though  the  debt  due  to  the 
king  was  contracted  by  the  vendor  many  years  after  the  alien- 
ation. 3  Bl.  Com.  420.  Here  the  distinction  is  still  kept 
up  between  the  revenue  officers  and  others." 

"  If  goods  are  taken  on  a  fieri  facias  against  the  king's 
debtor,  and  before  they  are  sold,  an  extent  come  at  the 
kind's  suit,  tested  after  the  delivery  cf  the  fieri  facias  to  the 


302  Law  Miscellanies. 

sheriff,  these  goods  cannot  be  taken  upon  the  extent,  but  tiic 
execution  upon  the  fieri  facias  shall  be  completed.  4  T.  R. 
402.   Rorke  v.  Dayrell. 

"  Even  Queen  Elizabeth,  with  all  the  supremacy  of  ab- 
solute sway,  did  not  carr}'^  her  prerogative  claims  to  the  ex- 
tent now  urged  for  a  federative  republic,  and  representative 
democracy." 

"  With  the  several  exceptions  already  stated,  and  which 
are  confined  principally  to  revenue  officers,  the  king  of  Eng- 
land has  no  prioriti/  in  the  recovery  of  his  debts  over  the 
meanest  peasant  ©f  his  dominions." 

Mr.  Ingersoll  goes  on  to  shew  why  the  construction  of  the 
act  in  question  ought  to  be  restricted  to  the  case  of  receivers 
of  public  monies, 

*'  How  strange  and  improbable  it  is,"  says  he,  "  that 
congress  should  give  a  preference  so  much  exceeding  the 
royal  prerogative  of  England  ?  Unless  such  a  construction  be 
absolutely  necessary,  the  inconvenience  attending  it  will  un- 
doubtedly prevent  its  adoption.  Besides  the  destruction  of  pri- 
vate credit,  and  the  ruin  of  individuals,  it  would  repeal  all  the 
state  laws  of  distribution  of  intestate  estates  ;  it  would  pros- 
trate all  state  priority,  which  in  those  cases  has  been  long  esta- 
blished. It  would  produce  a  collision  between  the  preroga- 
tive of  the  states,  and  the  United  States.  Suppose  the  trea- 
surer of  a  state  should  become  indebted  to  the  United  States, 
the  latter  would  take  his  whole  property,  in  opposition  to  any 
law  of  the  state  which  had  passed  to  secure  herself  against 
the  default  of  her  officers." 

"  If  that  act  is  to  have  the  extended  construction  contended 
for  on  the  part  of  the  United  States,  the  act  is  unconstitutioU' 
nl  and  void.  If  liens  general  or  specific  ;  if  judgments  and 
mortgages  are  to  be  set  aside  by  the  prerogative  of  the  Uni- 
ted States,  it  will  be  to  impair  the  obligation  of  contracts  by 
an  ex  post  facto  /aiy." 

"  Under  what  clause  of  the  constitution  is  such  power  given 
to  congress  ?  Is  it  under  the  general  power  to  make  all  laws 
necessar}'  and  proper  for  carrying  into  execution  the  parti- 
cular poweirs  specified  ?     If  so,  where  is  the  necessity^  oj- 


Law  Miscellanies.  305 

where  the  propriety  of  such  a  provision,  and  to  the  exercise 
of  what  other  power  is  it  necessary  ?" 

*'  Jt  is  in  direct  violation  of  the  constitution^  inasmuch  as 
it  deprives  the  debtor  of  his  trial  by  jury  without  his  con- 
sent." 

Johnston,  J.  Do  you  admit  the  law  respecting  the  final 
adjustment  of  accounts  at  the  treasury  to  be  constitutional 
as  to  revenue  officers  i 

Ingersoll.  We  neither  admit,  nor  deny  it  as  to  them.  But 
we  deny  the  power  of  the  congress  to  give  the  United  States, 
a  preference  in  all  cases  of  persons  who  may  become  indebt- 
ed to  them  in  every  possible  manner. 

It  was  not  necessarj'^  for  counsellor  Ingersoll  to  go  that 
length  in  the  case  before  the  court.  But  it  has  been  seen 
that  I  deny  the  right  to  give  a  preference  in  any  case. 

Patterson,  J.  Do  you  contend  that  by  the  5th  sec.  the 
priority  of  the  United  States,  will  avoid  even  a  mortgage  to 
an  individual  ? 

Ingersoll.  I  say  that  the  opposite  construction  leads  ta 
that. 

I  will  take  upon  me  to  say  the  same  thing.  If  the  act, 
and  the  construction  put  upon  it  by  the  court,  is  carried  out 
to  its  consequence,  it  cannot  be  otherwise.  What  is  a  speci- 
fic lien  more  than  a  general  lien  as  to  the  effect  of  it  ?  It 
had  been  considered  as  applying  to  the  general  lien  of  a 
judgment^  and  why  not  to  the  specific  lien  of  a  mortgage  ; 
A  judgment  binds  the  lands  so  that  the  debtor  has  but  an 
interest  in  these,  subject  to  the  payment  of  the  debt.  In  the 
case  of  a  mortgagee  it  is  the  same.  If  a  distinction  \i  made, 
it  is  not  founded  on  law  or  reason,  but  an  arbitrary  construc- 
tion of  the  court. 

But  it  is  not  the  construction  of  the  court,  that  I  encoun- 
ter, or  think  it  v/orth  while  to  trouble  myself  with ;  it  is  the 
acts  themselves  that  I  call  in  question,  as  to  the  poxvers  oj 
congrtiss  to  enact.  I  wish  to  go  to  the  foundation  of  the  ille- 
gality of  such  legislation.  The  substratum  or  scaffolding 
being  struck  away,  the  construction  will  fall  of  course. 

It  was  a  case  in  wbicb  the  commonwealth  of  Pennsvlva- 


304  Law  Miscellanies. 

nia  was  concerned,  that  led  the  supreme  court  of  this  state  tu 
consider  this  question.  I  think  it  was  the  case  oi  2i  judgment 
in  favour  of  the  state  against  Nichols.  Execution  had  been 
levied,  and  the  money  brought  into  court.  A  motion  was 
made  on  the  part  of  the  United  States  to  take  it  out,  in  fa- 
vour of  a  debt  due  to  them  by  the  same  defendant.  It  was 
refused  by  the  court.  I  have  not  heard  what  became  of  the 
appeal,  being  a  case  of  concurrent  jurisdiction  ;  but  I  coiild 
not  but  see  that  if  pressed,  and  decided  in  favour  of  the  Unit- 
ed States,  it  might  terminate  in  the  same  disagreeable  con- 
troversy, with  that  of  Olmstcad  and  the  Commonwealth. 

The  truth  is  the  whole  system  of  legislation  and  construc- 
tion in  hac  parte,  is  unconstitutional  and  void.  There  might 
be  the  like  reason  for  introducing  the  prerogative  of  the  so- 
vereign of  England  if  there  was  the  like  necessity.  Every 
fiscal  prerogative  of  that  country,  was  in  lieu  of  taxation  to 
support  the  government.  It  had  its  foundation  at  a  time, 
and  under  a  state  of  things  when  no  taxes  were  laid,  but  feu- 
dal services  exacted  by  the  sovereign  ;  or  at  least  when  the 
only  establishment  for  the  King's  household,  or  support  al- 
lowed him,  was  from  this  source.  What  have  we  to  do 
v/ith  any  thing  of  this  kind  under  our  government,  where  % 
provision  is  made  by  law  for  this  purpose ;  and  where  the 
great  source  of  revenue,  is,  er  ought  to  be  the  free  contribution 
of  the  people,  by  way  of  equal  tax  through  the  medium  of 
their  representatives.  Of  this  nature  is,  what  they  pay  volunta- 
rily by  duties  of  imports  ;  or  which  may  be  laid  upon  internal 
manufactures,  or  negociations ;  or  directly  upon  the  real  or 
personal  estate  of  individuals  in  proportion  to  their  proper- 
ty. It  may  be  said,  it  will  occasion  insurrections  to  exact  a 
revenue  by  direct  contributions ;  that  money  cannotbe  extorted; 
it  must  be  taken  circuitously,  and  clandestinely  from  a  free 
people.  If  that  should  be  found  the  case,  it  will  prove  them 
unworthy  of  a  free  government.  But  let  us  have  an  open  and 
direct  application  to  the  virtue  of  the  people,  until  it  shall  be 
proved  that  they  have  not  virtue  sufficient  to  justify  the  ex- 
periment, or  the  continuance  of  the  application,  to  their  un- 
derstanding,— and  not  to  their  blind  sides,  as  it  may  be  ex- 
pressed, by  surreptitious,  and  hidirect  means  :  more  especial-- 


Law  Miscellanies.  305 

\y  if  these  means  are  in  their  nature  unjust,  and  a  robbery  of 
individuals.  Of  this  nature  I  take  all  priority,  or  preference 
in  the  payment  of  debts  due  to  the  United  States,  over 
the  private  claims  of  a  citizen.  Prior  lien,  or  attachment,  as 
between  citizen  and  citizen,  ought  to  be  the  law  of  the  land, 
as  between  the  citizens  of  the  union,  and  the  union  itself. 


On  the  extent  of  the  judicial  power  of  the  courts  of  the  United 

States. 

I  DO  not  enter  into  the  question,  whether  the  congress 
may  not  "  from  time  to  time,  abolish  such  inferior  courts,  as 
they  may  from  time  to  time  ordain  and  establish.*'  On  this 
head  see  Tucker's  Blackstone's  Commentaries,  Appendix, 
361.  But  the  inferior  courts  abolished  by  the  act  29th  April, 
1802,  did  appear  to  me,  according  to  the  title  of  the  act 
Under  which  they  were  established,  to  be  "  a  more  convenient 
organization  of  the  courts"  of  the  United  States*  The  ad- 
ministration of  the  laws,  under  the  judicial  power  of  the 
United  States,  was,  by  those  courts,  brought  nearer  to  the 
doors  of  suitors,  jurors,  and  witnesses.  These  called  up- 
on, and  attending  from  an  extreme  of  a  state  to  some  one 
place  within  it,  was  inconvenient,  not  only  from  the  expence^ 
but  the  loss  of  time,  and  in  some  cases,  personal  inability  to 
attend,  at  so  great  a  distance.  It  would  seem  to  me  that 
some  arrangement  of  this  nature,  must  be  re-established,  if 
the  judicial  power  of  the  union,  continues  to  be  extended  as  it 
now  M.  The  resolution  of  J.  Breckenridge,  then  senator, 
since  attorney  general,  offered  in  the  senate  of  the  United 
States,  appeared  to  me  to  be  a  natural,  if  not  necessary  coa- 
aequence  of  the  abolition  of  these  vferior  courts.  This  was 
to  abridge  the  extent  of  the  judiciary  power  of  the  union, 
confining  it  to  "  cases  arising  under  the  constitution,  the  laws 
of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority  ;  to  all  cases  affecting  embassa- 
dors, other  public  ministers  and  consuls  ;  to  all  cases  of  ad- 


306  Law  Miscellanies. 

miralty  and  maritime  jurisdiction ;  to  controversies  to 
which  the  United  States  shall  be  a  party ;  to  controversies 
between  two  or  more  states,  and  between  a  state  and  citizen 
of  another  state.''  Here  the  power  might  have  a  close  ;  and 
by  an  amendment  to  the  constitution,  what  remains  might  be 
struck  away.  This  is  "  to  controversies  between  citizens  oi" 
different  states,  between  citizens  of  the  same  state,  claiming 
lands  under  grants  of  different  states,  and  between  a  state, 
or  the  citizens  thereof,  and  foreign  states,  citizens  or  sub- 
jects." 

It  is  not  only  to  the  inconvenience  under  the  present  sys- 
tem that  the  objection  lies;  but  there  is  a  radical  objection 
at  bottom  to  such  extent  of  judicial  cognizance,  of  the  United 
States'  courts  under  any  arrangemeiTt,  or  organization :  that 
is,  the  moral  improbability  to  say  the  least  of  it,  that  the 
judges  of  these  courts,  can  have  a  competent  knowledge  of 
the  laws  of  the  particular  states,  to  enable  them  to  decide  on 
local  questions  according  to  the  acts  of  the  legislature,  and 
the  established  construction  thereon;  or  according  to  loc^ 
usages,  and  practice.  But  it  may  be  answered,  that  there 
can  be  no  necessity  of  having  a  knowledge  of  the  construe^ 
tioti  of  the  acts  of  the  legislature;  or  of  the  practice  of  the 
courts,  since  not  bound  exclusively  by  these.  Hoc  gravamen 
est ;  this  is  the  rule ;  it  is  the  evil  that  they  are  not  bound. 
It  would  at  least  be  expedient  that  they  should  have  a  know- 
ledge of  these.  That  is  impracticable.  It  is  not  the  lucubra- 
tiones  viginti  annorum  ;  but  an  hundred  years  that  could  suf- 
fice for  this.  The  life  of  man  would  not  suffice,  with  the 
greatest  application,  to  acquire  such  minute  information  of 
the  laws,  usages  and  practice  of  each  particular  state  in  the 
union,  as  could  satisfy  a  conscientious  judge  himself,  that  he 
did  not  err  in  deciding  controversies,  according  to  the  laws, 
usages,  and  customs  of  each.  And,  it  is  not  to  be  wondered 
at  if  under  such  disadvantage  they  would  seem  to  have  erred 
in  many  cases,  or,  at  least,  have  not  secured  that  confidence 
in  their  decisions,  which  their  talents,  and  integrity,  not  un- 
der such  disadvantages,  would  doubtless  have  secured  with 
the  bar,  and  with  the  countrv. 


I 


Law  Miscellanies,  307 

It  would  seem  to  me  that  if  attorney  general  Brccken- 
ridge,  had  brought  forward  his  resolution  for  an  amendment 
of  the  constitution,  in  the  first  instance,  and  before  the  aboli- 
tkin  of  the  inferior  courts  established,  of  which  I  have  spoken, 
it  might  have  been  carried  in  the  senate,  and  adopted  by 
the  states ;  at  least  it  would  have  been  more  advisable  to  have 
taken  the  sense  of  the  people  in  this  way.  For  if  it  had 
been  thought  advisable  to  have  retrenched  the  judiciary  poW» 
er  of  the  union  in  this  way,  there  would  have  then,  been  no 
necessity  for  tliese  inferior  courts,  v^hich  had^been  so  esta- 
blished, and  the  province  of  duty  being  lessened  by  the  ju- 
risdiction struck  away,  these  courts  could  with  more  propri- 
ety have  been  abolished;  and  more  especially  as  little  or  no 
business  out  of  the  aea-ports,  and  commercial  towns,  would 
have  remained.  Such  amendment  to  the  constitution,  must 
take  place  ;  or  tliese  courts  in  some  shape,  on  the  score  of 
conveniencifyZt  least,  must  be  restored. 


Of  Errors,  as  it  would  seem  to  me,  in  decisions  of  "the  Supreme 
Court  of  the  United  States. 
CUI  bono,  it  may  be  said  ;  of  what  use  to  review  deci- 
sions ;  since  it  is  the  maxim,  non  ita  refert  quod  sit  lex, 
quam  quod  sit  nota.  The  nota  must  mean  settled;  because 
what  is  unsettled^  cannot  be  known.  And  it  must  be  the  ef- 
fect of  fluctuating  determinations,  that  the  law  must  remain 
uncertain^  and  therefore  unknown.  But  it  is  with  no  idea  of 
contributing  a  mite  towards  the  changing  adetermin^ion,  or 
the  principle  of  it,  that  this  examination  is  undertaken.  It 
would  be  absurd  to  suppose  it.  Even  a  judge  of  that  court; 
or  even  the  whole  court,  could  not  change  the  determination, 
though  they  might  have  it  in  their  power  to  change  the  prin- 
ciple ;  or,  in  other  words,  their  opinion  of  what  wag  the  law 
in  a  like  case.  But  of  what  use  can  it  be  that  an  individual 
undertakes  to  think  differently  from  what  a  court  has  decid- 
ed ?  I  cannot  say  that  I  can  give  any  other  reason  than  my 
ovfn  ambition,  to  let  people  see  that  I  also  have   an  opini- 


60S  Law  Miscellanies. 

on  ;  and  am  capable  of  remarking,  where  there  may  appear 
to  be  error.     Bwt  what  other  reason  can  be  given   in  many 
cases  of  criticism  ?  For  instance,  it  is  of  no  use  to  remark  an 
historical   error,   in  the  divine  poem  of  Milton,  as  in  that^ 
verse ; 

"  When  Charlemain  with  all  his  peerage  fell 

"  By  Fontarabbia— — ." 

Yet,  the  fact  is,  that  Roland  fought  the  battle  ;  and  Charle- 
main was  not  present,  and  neither  fell  there,  or  any  where 
else;  but  died  in  his  bed.  The  verse  might  be  altered  to 
meet  the  truth  of  history;  and,  at  the  same  time,  without 
spoiling  the  measure.  But  I  have  no  idea  that  the  printers 
will  make  the  alteration  in  the  next  edition.  However,  will 
it  not  be  pardonable,  not  only  to  have  made  the  observation  ; 
but  also  to  shew  how  the  alteration  could  be  made  ?  Would 
it  not  read  as  well,  and  perhaps  not  be  less  poetical,  to  say, 

When  all  the  peerage  fell  of  Charlemain 

By  Fontarabbia 

But  it  may  be  stWed  firesiimpt ion  in  me  to  attempt  a  re- 
mark upon  a  decision  of  the  supreme  court  of  the  United 
States.  I  would  admit  this,  did  it  not  furnish  an  objection 
against  all  criticism,  where  the  subject  is  of  transcendant 
eminence  and  dignity  :  Thus,  in  the  case  of  Milton  as  alrea- 
dy mentioned;  whose  genius  is  superior  to  what  mine  can 
pretend  to  be  ;   as  far  as 

"  Thrice  from  the  centre  to  the  ethereal  pole  ;" 
or  the  orbit  of  the  sun  himself, 

"  Nine  times  the  space  that  measures  day  and  night." 
Yet  it  is  allowable  even  in  such  cases,  to  speak  of  a  speck 
which  the  microscopic  eye  of  a  mosqueito^  can  perhaps  alone 
discern.  It  savoured  oi profanity  in  him  who  said,  though 
he  meant  it  but  as  wit,  that  '  had  he  been  consulted  in  the 
formation  of  himself,  he  would  have  put  the  calfs  of  his  legs 
before,  that  he  migj^tnot  break  his  shins.*  But,  of  all  things 
human,  and  beneath  divine,  it  is  lawful  to  hazard  a  correc- 
tion. 

Having  premised  this,    and  taking  up  the  reports  of 


Law  Miscellanies.  309 

Cranch,  I  find  the  case  of  William  Marburij  v.  James  Madi' 
son.  Secretary  of  State  of  the  United  States.   1  Cranch,  137. 
The  first  question  that  ought  to  have  been  made  in  this 
case,  was,  have  inferior  courts,  a  pozver  given  to  them  by  t/ie 
constitution,  or  the  latvs,  to  issue  a  mandamus  ?     In  the  con- 
stitution there  is  nothing  said  about  such  a  power  in  the  one 
court  or  the  other.     Independent  of  the  act  establishing  the 
judicial  courts  of  the  United  States,  neither  supreme  or  iifc'- 
rior  court    had  the  power  j  unless  we   should  suppose  that 
the  supreme  court  succeeded  to  the   power  of   the  court  of 
King's  Bench;  being  the  highest  court  of  the   union,  and  it 
being  necessary  for   the  administration  of  justice,  that  such 
writ,  which  has  been  called  a  high  prerogative  writ,  should 
issue.    But  the  legislature  of  the  union   would  seem  to  have 
thought  that  it  was  at  least  questionable,  or   that  it  had  been 
questioned,  whether  such  a  writ  could  issue  even  from   this 
the  highest  court.     For  by  the  act  to  establish  the   judicial 
courts   of  the    United    States,  it   is  provided  that   the   su- 
preme court  shall  have  power  amongst  other  things,  "  to  is- 
sue writs  of  mandamus  in  cases  xvarrantcd  by  the  principles 
and  usages  of  laxv,  to  any  courts  appointed,  or perscn'>  holding 
offices  under  the  authority  of  the  United  States.^''     Was  a  law 
necessary  to  give   such  a  power  to  the  supreme   court,  and 
could  aminferior  court  exercise  it,  without  a   provision   spe^ 
daily  giving  it.    It  cannot  be  said  to  be  impliedly  given;   for 
these  courts  themselves  are  made  the  subject  of  a  mandamus 
to  whom  it  is  to  issue  ;  and  it  would  be  an  inconsistency  to 
say,  if  these  courts  refuse  to  do  a  thing,  or  to  give  redress. 
they  might  issue  a  mandamus  to  themselves  in   the  first   in- 
stance.    Or,  in  the  case  of  other  persons  holding  offi(:es,yrh\ch 
are  the  words  of  the  act,  is   there  any  power  given  to  them 
under  the  act  to  issue  a  ynandamus  ?  The  supreme  court  shall 
have  appellate  jurisdiction  from  the  circuit  courts.     But  there 
roust  be  o/z^zna/jurisdiction  first  given,  before  there  can  be 
appellate.     Can    any  one  suppose,  for    a  moment,  that  any 
such  high  prerogative  power  would  be  given  by  the  congress 
to  an  inferior  circuit  court?  There  is  no  such  power  given  even 
to  any  of  the  higher  courts  in  England.     It  is  a  prerogative 
of  the  sovereignty,  and  so  called ;  and  can  issue  only  frons 


JlO  I. AW  Miscellanies. 

that  bench  which  controls  all  inferior  jurisdiction  ;  and  %vhere 
ulone  of  all  the  courts,  in  plena  majestate^  the  king  himself, 
is  supposed  to  be  present.  Can  any  one  suppose  then  that  a 
writ  of  such  high  and  supereminent  authority  could  be  in- 
tended to  be  given,  unless  we  Were  concluded  by  express 
words,  from  doubling  of  the  trust ;  what  is  more  to  courts  of 
inferior  jurisdiction  established  by  the  act,  under  our  republi- 
can government  ?  Here  we  may  naturally  suppose  the  citi- 
zen more  jealoxis^  of  such  writs  of  high  prerogative.  No  j 
it  never  came  into  the  head  of  any  person  before  this  deci- 
sion, that  an  inferior  court  of  the  United  States  had  the  porver 
to  issue  such  a  xvrit. 

The  king's  bench  has  the  power  to  issue  this  writ  of 
mandamus,  to  the  court  of  common  pleas,  who,  it  might  hap- 
pen, might  refuse  to  proceed  to  judgment,  that  a  writ  of  er- 
ror might  be  brought;  or  for  other  cause  might  be  the  sub- 
ject of  the  writ  of  w«n^«/MMs;  to  the  exchequer  also.  What 
did  the  congress  mean  more  than  to  give  a  similar  power  over 
inferior  jurisdictions  to  the  supreme  court  of  the  union. 
The  inferior  courts  of  the  union  had  a  right  to  raise  their 
heads,  indeed,  if  it  could  be  supposed  that  such  a  power  was 
given  to  them.  Even  in  their  own  case  where  they  refused 
to  do  a  thing,  they  must  first,  it  seems,  issue  a  mandamus  io 
fAcw5e/t'<'5,  and  decide  upon  it,  before  it  could  be  brought  be- 
fore the  supreme  court,  of  the  United  States.  This  would 
be  sitting  as  judges  in  their  own  case^  if  the  mandamus  had 
been  directed  to  them  commanding  them  to  do  an  act. 

If  there  is  no  orz^/;2c/ jurisdiction  in  an  inferior  court, 
there  can  be  no  apellate  ;  for  an  appeal  implies  a  decision 
from  whence  an  appeal  is  made. 

But  by  art.  3,  sec.  2,  n.  2,  "  in  all  cases  affecting  embassa- 
dors, other  public  ministers,  and  consuls  and  those  in  which 
a  state  shall  be  party,  the  supreme  court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned,  the  su- 
preme court  shall  have  apellate  jurisdiction."  That  must 
be  in  all  other  cases,  where  the  inferior  courts  have  original 
jurisdiction  given  them  ;  for  original  and  apellate  are  relative 
terms,  and  where  the  one  does  not  exist,  the  other  can  have 
noplace.     The  truth  is  that  with  regard  to  a  mandamuSy  the 


Law  Miscellakies.  311 

relation  of  the  terms  does  not  exist,  because  it  is  the  supreme 
court  alone  to  whom  any  jurisdiction  is  given  in  this  case. 

What  then,  to  use  the  language  of  the  court,  could  consti- 
tute "  the  peculiar  delicacy  of  the  case,  the  novelty  oj  some  of 
the  circumstances,  and  the  real  difficulty  attending  the  points 
which  occur  in  it .?"  I  can  see  no  difficulty  in  any  of  the  points, 
nor  is  there  any  novelty  of  principle  in  the  determination. 
But  I  will  acknowledge  there  was,  a  peculiar  delicacy,  as  the 
court  express  it,  in  the  case.  It  was  whether  the  judiciary 
should  enter  into  a  contest  with  the  executive.  They  could 
not  but  see  that  if  the  mandamus  issued,  it  must  be  directed 
to  the  marshal,  who  was  the  officer  of  the  executive,  and  who 
might  be  instructed  not  to  obey ;  and  if  an  attachment  issued 
against  the  marshal,  for  not  obeying,  who  was  to  put  him  ia 
jail  but  himself  f  The  court  would  be  placed  in  an  undignified 
situation  in  such  a  case,  who  had  issued  a  writ  which  they 
could  not  enforce. 

On  the  marshal's  return  to  the  writ  that  he  was  instruct- 
ed by  the  executive  not  to  pay  regard  to  it,  what  remained  but 
to  represent  this  to  the  legislature  that  the  executive  might 
be  impeached,  if  they  should  be  of  the  sam.e  opinion  with  the 
court,  as  to  the  power  of  issuing  the  mandamus.  But  the 
legislature  might  be  of  opinion  that  the  writ  was  not  grant- 
able  in  such  a  case,  and  instead  of  impeaching  the  president. 
impeach  the  judges  who  had  issued  it.  Or,  by  repealing  the 
faw  under  which  the  supreme  court  was  constituted,  these 
judges  might  be  got  rid  of  altogether.  For  though  the  con- 
stitution provides  that  there  shall  be  2i  supreme  court,  yet  the 
ideiitity  of  judges  has  nothing  to  do  with  this.  There  could 
be  a  supreme  court  with  one  set  as  well  as  another.  The 
legislature  had  shown  what  they  could  do,  in  a  case  just  be- 
fore, that  of  the  circuit  courts ;  and  they  might  be  disposed 
to  do  the  like  in  the  case  of  the  supreme  court. 

Not  that  I  would  insinuate  that    if  the  matter  was  per- 
fectly clear  to  the  judges,  they  would  hesitate  for  the  sake  of 
their  own  standing,  to    grant  the   writ.     But  weighing  the 
embarrassment  of  what  might  be  the  consequence,  they  may 
naturally  be  supposed  to  have  had  a  leaning,  er  predisposi- 


Sl'Z  Law  Miscellanies. 

tion  to  avoid  it.  Or,  to  use  the  legal  ffrm,may  have  thought 
some  astutia  justifiable  in  finding  reason  to  avoid  it.  But  it 
might  not  be  for  their  own  sokes  merely,  or  any  regard  to 
the  commissions  which  they  held,  but  for  the  sake  of  the 
constitution  which  might  be  injured  in  their  case,  and  for  the 
sake  of  that  precedent  which  might  be  set  at  a  time  when  one 
party  had  succeeded  to  the  administration  on  the  overthrow 
of  another.  So  far  am  I  from  finding  fault  with  the  judicia- 
ry in  this  instance,  that  I  will  admit  the  prudence  of  what 
they  did  ;  or,  in  other  words,  the  expediency.  And  if  there 
could  be  a  case  where  the  issuing  the  writ  was  discretionary^ 
this  was  such  a  case.  But  I  am  speaking  of  the  legal  cor^ 
rectness  of  the  decision  as  to  the  power  of  granting  the  man- 
damus, v.'hich  was  put  upon  the  ground  of  a  want  of  original 
jurisdiction  in  such  a  case*.  The  court  saw  the  delicacy  of  the 
case  as  involving  not  their  own  standing  merely,  but  the  sta^ 
hility  of  the  judiciary  branch  of  the  government,  which  might 
be  endangered,  by  an  unreasonable^  and  as  they  would  seem 
to  have  thought,  a  questionable  stand  to  support  it. 

A  principle  of  self-preservation,  not  of  themselves  mere- 
ly but  of  the  post  which  they  occupied  to  use  a  military  phrase, 
may  have  dictated  the  withdrawing  from  a  contest  which 
might  be  attended  with  unfavourable  consequences,  and  at 
all  events  disagreeable.  It  is  said  of  the  Nile  receding  from 
the  blaze  of  conflagration,  when  Phseton  misguided  the  cha- 
riot of  the  sun, 

Occuluitque  caput. ■ 

And  of  the  Earth  itself  on  that  occasion, 

Suum  que 
Retulit  OS  in  se. 

It  was  not  certain  what  the  return  of  secretary  Madisoi; 
would  be ;  but  it  might  be  a  refusal  to  make  a  return  :  in  that 
case  an  attachment  must  issue,  which  the  marshal  might  re- 
fuse to  serve.  These  circumstances  could  not  but  be  fore- 
seen, and  are  what  we  may  presume,  were  in  the  view  of  the 
court,  when  they  speak  of  it  as  a  case  of  peculiar  delicacy.; 
and  attended  with  circumstances  novel  in  their  nature. 


Law  Miscellanies.  313 

The  folloiving  official  ojdnion  of  the  attorney  general  of  the  Unit- 
ed Utates  has  been  trans7nitred  to  the  different   collectors^  for 
their  government. 
Sir, 

I  have  read  and  considered  the  papers  and  documents  referred  to 
me  relative  to  the  case  of  the  mandamus.,  issued  by  the  circuit  court 
of  the  United  Sates  for  the  district  of  South  Carolina,  to  compel  the 
collector  of  tlie  port  of  Charleston  to  grant  cleai^ices  to  certain 
vessels. 

The  first  question  tiiat  naturally  presents  itself,  is,  whether  the 
rourt  possessed  the  power  of  issuing  a  mandamus  in  such  a  case  ? 

A  mandamus  in  England  is  styled  a  prerogative  writ,  and  in 
that  country  is  awarded  solely  and  exclusively  by  the  court  of 
king's  bench. 

The  constitution  and  laws  of  the  United  States  establish  our 
]j^icial  system.  To  these  we  must  refer  in  order  to  ascertain  the 
jurisdiction  of  the  respective  courts,  the  extent  of  their  powers,  and 
the  limits  of  their  authoi'ity. 

The  "  Act  to  establish  the  judicial  courts,  of  the  United  States," 
passed  on  the  24th  September,  1789,  declares  and  defines  the  juris- 
diction of  the  several  courts  thereby  created,  and  among  these 
the  jurisdiction  of  the  circuit  courts.  Upon  a  careful  and  atten- 
tive perusal,  it  will  be  found  to  delegate  to  the  circuit  courts  no 
power  to  issue  writs  of  mandamus.  In  tlie  thirteenth  section  of 
that  act  this  authority  is  expressly  given  to  the  supreme  court  of 
the  United  States.  In  like  manner  it  is  specially  provided  by  the 
act  of  the  3d  of  February,  1801,  that  the  supreme  court  shall  have 
power  to  issue  writs  of /«a«(/cw«ir.  This  last  act  having  been  re- 
pealed, and  the  former  revived,  the  question  must  rest  on  the  true 
construction  to  be  given  t©  the  original  act. 

The  eleventh  section  defines  and  liinits  the  jurisdiction  of  the 
circuit  courts.  It  is  specially  appropriated  to  tfiis  single  object. 
There  are  no  expressions  in  this  section  which  can  fairly  be  inter- 
preted to  confer  tlic  authority  of  issuing  writs  of  mandamus.  Xor 
can  the  power  be  either  implied  or  inferred  from  any  language  it 
contains.  It  is  true,  the  proceeding  by  mandamus  in  England  is  on 
thecro^n^  side,  as  it  is  termed,  of  the  court  of  king's  bench.  But 
ilisa  prosecution  relative  to  a  civil  right  to  enforce  it,  and  to  ob- 
uiinpro'.Tipt  redress;  and  not  to  punish  criminalty  as  in  the  case 
<A  an  OiTcrice.  Tiic  provision  therefore  that  the  circuit  coiu-ts. 
"  shall  have  enclusive  cognizance  of  all  crimes  and  offences  cog- 

Rr 


ol-i  Laav  Miscellanies. 

jiizablc  under  the  authority  of  the  United  States,  except  when  the 
act  otherwise  provides,  Sec."  cannot  warrant  such  a  proceeding- 
Besides  the  same  act  does  provide  that  the  supreme  court  shall  is- 
sue writs  of  mandamus — An  authority  given  perhaps  because  its 
jurisdiction  extended  all  over  the  United  States. 

In  the  first  place,  the  law  gave  the  collector  complete  discre- 
tion over  the  subject.  According  to  the  opinion  he  might  form, 
he  possessed  competent  autliority  to  grant,  or  refuse  a  cleai'ance. 
And  I  apprehend  where  the  law  has  left  this  discretion  in  an  offi- 
cer, the  court,  agreeably  to  the  British  practice  and  precedents, 
ought  not  to  interpose,  by  way  of  mandamus. 

Secondly.  In  this  case,  there  was  a  controuling  power  in  the 
chief  magistrate  of  the  Unitpd  States.  There  was,  in  fact,  an  ex- 
press appeal  given  to  the  president  by  the  very  words  of  the  act 
of  congress,  which  authorizes  the  collectors  to  detain  vessels,  "  un- 
til the  decision  of  the  president  of  the  United  States  be  had  there- 
upon." By  the  mandamus,  the  reference  to  the  president  is  taken 
away,  and  the  collector  is  commanded  to  clear  the  vessel  without 
delay.  Agreeably  to  the  English  authorities  under  such  circum- 
stances, it  is  not  the  course,  I  believe,  to  issue  a  mandamus. 

Thirdly.  The  parties,  it  seems,  had  their  legal  remedy  against 
the  collector,  and  it  is  not  usual,  if  not  unprecedented,  to  grant  a 
mandamus  in  such  a  case. 

Fourthly.  A  mandamus  is  not  issued  to  a  mere  rauiisterial  offi- 
cer to  compel  him  to  do  his  duty.  The  court  will  leave  the  par- 
ties to  their  remedy,  by  action  or  even  by  indictment.  In  England, 
in  a  very  late  case,  they  declared  that  they  would  not  grant  a  man- 
damus to  a  ministerial  officer,  such  as  the  treasurer  of  a  county, 
for  the  proper  remedy  was  by  indictment. 

I  am  aware  of  a  precedent  in  which  it  seems  to  be  admitted, 
that  a  mandamus  may  issue  to  the  commissioners  of  excise,  to  com- 
pel tlicm  ill  a  proper  case,  to  grant  a  permit.  The  case  is  more 
analagous  to  the  one  now  before  vis,  than  any  other,  I  have  been 
able  to  discover,  after  a  diligent  research.  But  in  this  instance, 
the  point  was  not  made,  nor  the  question  argued.  Besides,  the 
commissioners  of  excise  in  England  forma  board  for  superintend- 
ing the  collection  of  that  branch  of  the  revenue.  They  consti- 
tute, in  many  respects,  a  court  of  inferior  jurisdiction,  which,  in 
particular  cases  takes  cognizance  in  a  summary  way,  of  offences 
against  the  excise  laws.  A  mandamus  might  be  granted  to  such 
a  tribunal,  wlien  it  would  not  be  issued  to  a  mere  ministerial  officer, 
acting  under  them,  in  collection  of  the  revenue^ 


Law  Miscellanies.  ^^' 

The  fourteenth  section,  iuimediatciy  succeeding  that  which 
gives  this  authority  in  plain  and  positive  terms  to  the  supreme 
court,  solely,  if  not  exclusively  (and  the  affirmative  frequently, 
and  in  this  case  justly,  I  thmk  implies  a  negative)  contains  the 
folIoAving  provision :  "  All  the  before-mentioned  courts  of  the  Unit- 
ed States  (including  the  supreme,  as  well  as  the  circuit  and  dis- 
trict courts)  shall  have  power  to  issue  writs  of  scire  faciast  habeas 
ror/ius,  and  all  other  writs  not  specially  provided  for  by  statute, 
which  may  be  necessary  for  the  exercise  of  their  respective  jui'is- 
dictions."  This  clause  cannot  affect  the  case,  I  conceive.  The 
mandamus  is  a  Avrit,  which  we  have  seen  is  specially  provided  for 
by  law.  This  section  was  evidently  not  designed  to  give  any  ad- 
ditional jurisdiction  to  either  of  the  courts,  but  merely  the  means 
of  executing  that  jurisdiction  ali'cady  granted  to  them  respectively. 
The  issuing  of  a  mafidamus  in  the  case  under  consideration  was 
an  act  of  original  jurisdiction.  Precisely  as  much  so  as  it  would 
have  been  in  the  supreme  court,  to  have  exercised  the  power  in 
the  case  of  Marbury  vs.  Madison.  In  that  case,  the  supreme  court 
declared,  that  to  issue  a  mandamus  to  tlie  secretary  of  state,  would 
be,  to  exercise  an  original  jurisdiction,  not  given  by  the  constilti- 
tion,  and  which  could  not  be  granted  by  congress.  The  constitu- 
tion having  enumerated  oi'  declared  the  particular  cases  in  which 
the  supreme  court  should  exercise  original  jurisdiction,  tl.ough 
there  were  no  negative  expressions,  the  affirmative  they  consider- 
ed implied  them.  It  was  on  this  principle  alone  they  refused  to 
exert  their  atithority. 

The  practice  I  believe,  has  uniformly  been,  so  far  as  I  can  trace 
it  from  the  books  of  reports,  that  have  been  published,  or  from  re- 
collection and  experience  on  the  subject,  to  apply  to  the  supreme 
court  for  a  mandamus.  This  court  it  is  true  has  determined  not  to 
issue  the  writ,  when  it  would  be  an  act  of  original  jurisdiction. 
But  this  I  apprehend,  can  afford  no  ground  for  the  circuit  court's 
assuming  an  authority,  which  tlie  supreme  court  have  declined,  un- 
less by  a  legislative  act  the  power  be  delegated  to  them. — Tliis 
power  is  not  inherent,  nor  necessarily  incidental  to  a  court  of  jus- 
tice even  of  general  jurisdiction.  For  in  England  but  a  single  one, 
pf  several  courts  having  general  jurisdiction,  possesses  the  autho- 
rity. Neither  the  chancery,  the  common  pleas,  nor  the  exchequer, 
though  classed  among  the  king's  superior  courts,  and  having  ge- 
neral jurisdiction  over  the  realm,  can  exercise  this,  power.  It  is 
the  peculiar  privilege  of  the  king's  bench  alone.  Our  circuit 
courts  have  a  mere  local  and  subordinate  jurisdiction.     Their  ana- 


316  JCaw*  Miscellanies. 

logics  therefore  with  the  four  courts  of  England  having  general  and 
superior  jurisdiction,  must  be  very  weak,  and  still  weaker  their 
claim  to  the  pre-eminent  distinction  of  the  king's  bench,  which  pos- 
vsesses  solely  the  exclusive  authority  of  issuing  the  mandamus. 

For  these  reasons  I  am  induced  to  believe  from  the  best  consi- 
deration I  have  been  enabled  to  give  the  subject,  that  the  circuit 
court  of  South-Carolina  had  not  authority  to  issue  a  inandanius  to 
the  collector  of  the  port  of  Charleston. 

It  is  scarcely  necessary  to  remark,  that  when  a  court  has  no 
jurisdiction,  even  consent  will  not  give  it,  and  much  less  will  the 
mere  tacit  acquiescence  of  a  party  in  not  denying  their  authority. 

Independent  of  this  serious  and  conclusive  objection  to  the 
proceedings  adopted  by  the  court,  there  are  others  entitled  to  con- 
sideration. For  supposing  the  court  did  not  ei-r  in  the  exercise 
of  jurisdiction,  and  admitting  the  British  doctrines  on  the  subject, 
without  restriction  or  limitation  could  be  extended  to  this  country, 
there  are  legal  exceptions  to  the  course  they  have  pursued,  support- 
ed by  the  English  authority. 

It  results  from  this  view  of  the  subject,  that  the  mandamus  is- 
sued by  the  circuit  court  for  the  district  of  S.  Carolina,  was  not 
warranted  by  any  power  vested  in  the  circuit  court  by  statute  :  nor 
by  any  power  necessarily  incident  to  courts,  nor  countenanced  by 
any  analogy  between  the  circuit  court  and  the  court  of  king's 
bench,  the  only  court  in  that  country  possessing  the  power  of  issu- 
ing such  writs.  And  it  further  appears  that  even  the  court  of  king's 
bench  for  the  reasons  assigned,  would  not,  agreeably  to  their  prac- 
tice and  principles,  have  interfered  in  the  present  case  by  manda- 
mus. 

It  might  perhaps  with  propriety  be  added,  that  there  does  not 
appear  io  the  constitution  of  the  United  Staters,  any  thing  which 
favours  an  indefinite  extension  of  the  jurisdiction  of  courts,  over 
the  ministerial  officers  within  the  executive  department.  On  the 
contrary,  the  careful  discrimination  which  is  marked  between  th» 
several  departments,  should  dictate  great  circumspection  to  each 
in  the  exercise  of  powers  having  any  relation  to  the  other. 

The  courts  are  indubitably  the  source  of  legal  redress  for 
wrongs  committed  by  ministerial  officers,  none  of  whom  arc  above 
the  law.  This  redress  is  to  be  administered  by  due  and  legal  pro- 
cess in  the  ordinary  way.  For  there  appears  to  be  a  material  and 
obvious  distinction,  between  a  course  of  proceeding,  which  redress- 
es a  wrong  committed  by  an  executive  oJTicer,  and  an  interposi- 
tion by  a  mandatory  writ  taking  the  executive  authority  out  of  the 


Law  MiscELLANirs.  31 )' 

hands  of  the  president,  and  prescribing  the  course  which  he  and 
the  agents  of  any  department  must  pursue.  In  one  cD,se  the  exe- 
cutive is  left  free  to  act  in  his  proper  sphere,  but  is  held  to  strict 
responsibility ;  in  the  other  all  responsibility  is  taken  away,  and 
he  acts  agreeably  to  judicial  mandate.  Writs  of  this  kind  if  made 
applicable  to  officers  indiscriminately,  and  acts  purely  ministerial 
and  executive  in  their  nature,  would  necessarily  have  the  effect  of 
transferring  the  powers  vested  in  one  department  to  another  de- 
partment. -If  in  a  case  like  the  present,  where  the  law  vests  a  duty 
and  a  discretion  in  an  executive  officer,  a  court  cannot  only  admi- 
nister redress  against  the  misuse  of  the  authority,  but  can  previous- 
ly direct  the  use  to  be  made  of  it,  it  would  seem  that  under  the 
name  of  a  judicial  power,  an  executive  function  is  necessarily  as- 
sumed, and  that  part  of  the  constitution  perhaps  defeated,  wliicli 
makes  it  the  diUy  of  the  president  to  take  care,  that  the  laAvs  1)C 
faithfully  executed.  I  do  not  see  any  clear  limitation  to  this  dec- 
trine,  which  would  prevent  the  coiu'ts  from  compelling  by  mandar 
mus  all  the  executive  officers,  all  subordinate  to  the  president  at 
least,  whenever  charged  with  legal  duties  in  the  treasury  or  other 
department,  to  execute  the  same  according  to  the  opinion  of  the 
judiciary  and  contrary  to  that  of  the  executive.  And  it  is  evident 
that  the  confusion  arising,  will  be  greatly  increased  by  the  exercise 
of  such  a  power  by  a  number  of  separate  courts  of  local  jurisdic- 
tion, whose  proceedings  would  have  complete  and  linal  effect, 
without  an  opportunity  of  control  by  tb.e  supreme  court.  So  ma- 
ny branches  of  the  judiciary,  acting  within  their  respective  dis- 
tricts, their  courses  might  be  different,  and  different  modes  of  ac- 
tion might  be  prescribed  for  the  citizens  of  the  different  states,  in- 
stead of  that  unity  of  administration  which  the  constitution  meant 
to  secure,  by  placing  the  executive  power  for  tiiem  all  in  the  same 
head. 

What  toobecomcsof  the  responsibility  of  the  executive  to  the 
court  of  impeachment,  and  to  the  nation?  Is  he  to  remain  respon- 
sible for  acts  done  by  command  of  another  department  ?  Or  is 
tlie  nation  to  lose  the  security  of  that  responsibility  altogctlier  ? 
From  these  and  other  considerations,  were  this  branch  of  the  sub- 
ject to  be  pursued,  it  might  be  inferred  that  the  constitution  of  the 
United  States,  by  the  distribution  of  powers  of  our  government  to 
different  departments  ascribing  the  executive  duties  to  one,  and 
the  judiciary  to  another,  controls  any  principles  of  the  English  law, 
%'hich  would  authorize  cither  to  enter  into  the  department  of  the 


^18  IrAw  Miscellanies. 

(fthcrLo  aimul  llic  powers  of  that  other,  and  to  assume  the  ilnec- 
tion  of  its  operations  to  itself. 

These  remarks  arc  rcspeclfully  submitted  to  your  considera- 
lien.  They  are  to  be  made  v.'ith  due  deference  to  the  opinion  of 
the  court,  Avith  one  of  the  judges  constituting  which,  I  ampei"son- 
ally  acquauited,  and  for  whose  character  I  feel  the  sincerest  re- 
gard. 

Yours,  verv  respectful! v. 

(Signed)        '  '  C.  A.  R0DNP:Y. 

Julv  15,  1808. 


M'llvahie  v.  Coxc's  lessee.     2  Ci*ancli.  280. 

It  still  stich  in  my  mind  that  it  may  be  thought  presump- 
tion and  impertinence,  to  undertake  to  examine  any  decision 
of  the  supreme  court  of  the  United  States.  But  it  ought  to  be 
considered  that  the  decision  of  the  highest  court ;  and  even  of 
the  highest,  in  continuance,  and  by  the  repeated  decisions  of 
different  judges],  are  but  evidence  of  what  is  law.  And  this 
evidence,  is  strengthened  by  the  unanimity  of  judges  on  the 
same  bench;  and  by  a  series  of  decisions  taking  place  to  the 
same  effect.  It  still  further  strengthens  this  evidence,  that 
there  has  been  an  acquiescence,  by  the  bar,  and  by  the  public* 
The  sense  of  the  profession  goes  always  a  great  way ;  and  de- 
servedly, in  fixing  what  is  law,  or  otherwise,  upon  a  particular 
point ;  ior  frequently,  if  not  usually,  there  are  greater  men  at 
the  bar,  than  on  the  bench  ;  and  the  judges  themselves  will 
always  pay  regard  to  the  sentiments  of  the  servientes  ad  le- 
gem, or  the  barristers  of  learning  and  ability.  But  what  is 
more,  great  respect  is  due  also  to  general  sense  and  public 
opinion.  In  proportion  to  the  general  sense  of  the  commu- 
nity, is  the  evidence  of  a  decision,  weakened,  or  strengthen- 
ed. 

t 

The  sense  of  a  community  is  evinced,  more  especially'by 
the  disquisitions  of  the  learned  on  the  subject.  What  was 
originally  wrong,  unless  great  inconvenience  was  to  be  the 
consequence,  ought  not  to  prevail.  The  general  sense  of  the 


Law  Miscellanies.  319 

mass  of  the  people  ought  to  have  weight  in  shaking  a  decision. 
I  will  not  apply  to  this  the  maxim,  quod  initio  non  valet, 
tractu  temporis,  non  convalescit;  but  this  I  will  say,  con- 
valescere  non  debuisset. 

Has  there  ever  been  a  single  voice  heard,  in  these  states, 
but  that  of  reprobation^  of  the  decision  of  Chief  Justice  Ells- 
worth, in  the  czscoi  Isaac  Williams^  February  27th,  1797? 
that  the  nemo  exuere  ligeantiam,  existed  a  principle  of  our 
common  law  ;  and  was  carried  by  the  emigrants  to  these  co- 
lonies from  England  ?  If  we  examine  the  substratum  of  the 
principle,  it  will  be  seen  to  fail,  2ls,  applicable  to  our  situatio7i. 
But  I  will  not  undertake  to  examine  that,  in  the  present  case; 
at  least  at  the  present  stage  of  my  observations.  It  is  suffi" 
cient  to  illustrate  ray  position ;  viz.  that  an  acquiescence  in  a 
decision  adds  weight  to  it;  and  I  speak  of  the  acquiescence 
of  the  public  mind,  as  well  as  of  the  individual  opinions  of 
elementary  writers,  or  essayists  of  every  description.* 

The  present  case  of  M'llvaine  and  Coxe  lay  in  a  narroxver 
compass ;  or  at  least  was  determined  on  a  principle  short  of 
the  general  07ie,  of  the  nemo  exuere  ligeantiam.  For  this 
principle  did  not  apply  to  a  revolutionary  case,  where  it  can- 
not but  be  admitted,  that  each  of  the  community  has  a  right 
to  chuse  his  side.  The  question  was,  rohether  by  remaining 
sometime  in  the  state  of  Jersey  after  the  declaration  of  inde- 
pendence^ Coxe  had  not  chosen  his  side  and  elected  to  become  a 
subject  of  the  new  government.  I  will  admit,  for  the  present, 
that  by  remaining  one  moment  after  the  declaration  of  inde- 
pendence, longer,  than  was  absolutely  necessary  to  get  out  of 
it;  he  became  a  citi-zen  of  the  ne-w  commo?iu>calth,  and  owed 
allegiance ;  this  I  admit  for  the  present,  and  in  order  to  ex- 
clude all  difficulty  on  the  ground  of  qualifed  allegiance. 

In  affirmance  of  this  inference  of  law,  that  by  remaining 
in  Jersey  after  the  declaration  of  indepedennce,  he  became  a 
citizen ;  the  act  of  4th  October,  1 77Q>^  declares,  "  tljat  all  per- 
sons there  abiding,  not  only   owe  allegiance,  but  are  mem- 

*  For  this  reason  it  may  be  excusable,  if  not  justiiiablc,  and  a 
duty,  where  any  of  a  comnHi'iity  di^oents  from  a  decision,  to  come 
forward  nnd  orjircss  it. 


3^0  Law  Miscellanies. 

hers  of  the  then  government."  Doubtless  Coxe  leaving 
the  state  afterthis,  and  joining  the  British,  might,  instrictness^ 
and  according  to  abstract  rigid  law,  be  considered  as  having 
been  guilty  oVagh  treason;  andif  fouad  within  that  common- 
wealth, proceeded  criminally  against  for  such  offence.  If 
holdeia  a  subject,  his  descendant  could  inherit  what  had  not 
been  confiscated ;  or  taken  away  by  the  commonwealth.  Qui 
sentit  commodum,  sentire  debet  et  onus  ;  and  to  reverse  the 
maxim,  qui  sentit  onus,  sentire  debet  et  commodum.  Why 
should  he  be  amenable  as  a  citizen,  to  suffer  less  of  property, 
or  life,  and  not  be  considered  as  entitled  to  the  benefit  of 
inheritance,  to  his  posterity  ?  Agreed  therefore,  "  that  it 
would  have  been  competent  for  that  state  to  allege  allienage 
in  Coxe.  That  a  treaty  of  peace  intervened  which  is  a  su- 
preme law,  it  is  insisted,  says  judge  Gushing,  4  Cranch,  114, 
"  that  the  treaty  of  peace  operating  upon  his  condition  at  that" 
time,  or  afterwards,  he  became  an  alien  to  the  state  of  New- 
Jersey,  in  cow5ey?/^7zcr  of  his  election  then  made  to  become  a 
subject  of  the  king,  and  his  subsequent  conduct  confirming 
that  election."  "  In  vain,"  continues  that  judge  delivering  the 
opinion  of  the  court,  "  have  we  searched  that  instrument  for 
some  clause  or  expression^  which  by  amj  implication  could 
work  this  effect^ 

I  take  it  to  result,  by  necessary  implication,  and  legal  in- 
ference from  this  clause  of  the  treaty,  art.  vi.  "  There  shall 
be  no  future  confiscations  made,  nor  any  prosecutions  com- 
menced against  any  person,  or  persons,  for,  or  by  reason  of 
the  part  which  he  or  they  may  have  taken  in  the  present  war." 
This  cannot  but  be  considered  as  a  repeal  of  the  Jersey  law; 
iind  in  that  case  no  impediment  was  in  the  way  of  a  British 
adherent  during  the  war,  to  return  to  his  state,  if  he  should 
chusc  to  elect  to  be  considered  a  citizen.  I  consider  him  plac- 
ed in  the  situation  precisely,  with  that  of  having  chosen  his 
side,  and  quitted  the  state  before  the  commencement  of  the 
war.  In  tliat  case  a  new  government  being  formed  he  was 
excluded,  and  could  not  become  a  citizen,  without  some  act 
on  his  part  revesting  himself  of  that  privilege.  I  will  agree 
that  he  might  be  allowed  a  reasonable  time,  say  his  whole  life, 
to  come  in.     But  never  hr.ving  come  in,   citizc-nship  did  not 


Law  Miscellanies.  321 

result  in  him.  For  not  until  he  had  resumed  his  character, 
and  put  himself  in  the  condition  of  a  citizen,  could  he  be  in- 
titled  to  hold  land^  on  the  facts  found  in  the  special  verdict^ 
and  from  which  the  court  had  a  right  to  draw,  and  could  not 
but  draw  the  conclusion  of  expatriation.  I  could  not  consider 
him  as  having  died  jfizerf/  and  tn  that  case,  real  estate  could 
not  descend  to  the  heir.  For  suppose  him,  until  his  latest 
breath,  to  have  a  right,  under  the  treaty,  to  revest  himself 
with  the  right  of  a  citizen,  i&  contemplation  of  law,  a  moment 
must  exist  on  his  expiring,  before  the  transit  could  be  made 
of  the  estate,  to  Mxs  grantee. 

But  I  would  be  willing  to  favour  every  possible  legal  as- 
tiitia  to  save  the  descent  of  an  estate,  and  inheritance  under 
the  circumstance  of  a  revolutionary  period  j  but  I  am  oppos- 
ed to  every  thing  that  would  giVe  countenance  t6  the  idea  of 
not  being  able  to  expatriate.  The  principle  of  the  nemo  exuere  I 
detest.  All  notion  of  this  being  a  principle  of  the  common  law 
carried  with  us  from  a  feudal  country  in  our  emigration,  I 
would  scout  from  our  code.  It  had  its  origin  in  a  mtlitarij 
establishment;  and  agreeable  to  military  ideas,  he  might  be 
considered  a  deserter^  who  would  leave  the  ranks,  except  upon 
furlough,  so  to  speak,  and  might  be  punished  as  such.  It  is 
on  account  of  giving  the  most  distant  Countenance  to  the  sup* 
posed  introduction  of  this  principle  that  I  dislike  the  decision 
in  this  case. 


Simtiis  ami  Wise  v.  Slacuni.  3  Crancli,  300.  Error  to  the  circuit 
ourtofthe  district  of  Columbia,  and  the  judgment  reversed,  judge 
Pater  son  dia.^.'iTiUng. 

I  take  the  opportunity  of  expfeesing  the  great  respect  which 
J.  entertain  for  the  memoiyof  judge  Paterson,  though  there 
iiave  been  cases  decided  by  him,  or  \f  here  he  has  joined  in 
the  decision,  which  I  have  thought  wrong.  His  natural  ta- 
lents were  respectable  j  and  his  legal  knowledge,  the  result 
of  all,  that    application  could  do.     But   the  integrity  of  his 

S    3 


o22  Law  M1SCELLANIE8. 

mind  was  pure,  and  his  manners  amiable.  I  had  known 
him  from  an  early  period  in  life  ;  but  not  with  intimacy, 
being  my  superior  in  years,  and  in  standing.  But  all  that 
I  ever  observed  of  him  was  dignified,  and  noble.  I  cannot 
say,  but  that  in  this  case,  where,  in  looking  at  the  report,  I 
saw  that  he  dissented^  I  had  ^predisposition  to  find  him  right, 
against  the  majority  of  the  coiirt ;  and  this  I  had  the  satisfac- 
tion, abundantly,  to  find  ;  and  this  I  undertake  to  say,  with- 
out fear  of  contradiction  from  the  majority  of  the  learned  iil 
the  law,  maugrc,  the  weight  of  a  decision  of  the  supreme 
court.  I  shall  just  take  the  liberty  of  submitting,  for  the 
proof  of  this,  the  decision  of  the  court,  with  judge  Pater- 
son's  reason  of  dissent  contrasted. 

Mae  SHALL,  Ch.  J.  delivered  the  opinion  of  the  majority  of 
the  court. 

This  case  depends  on  the  construction  of  an  act  of  the  legisla- 
ture of  Virginia,  which  allov/s  the  prison-rules  to  a  debtor  wliose 
body  is  in  execution,  on  his  giving  bond,  with  sufficient  se- 
curity, not  to  go  out  of  the  rules  or  bounds  of  the  prison ;  that 
is,  while  a  prisoner.  The  condition  usually  inserted  is,  not  to  de- 
part therefrom  till  he  shall  be  discharged  by  due  course  of  laM', 
or  shall  pay  the  debt.  The  act  further  provides,  that  the  prisoner, 
on  delivering  a  schedule  of  his  property  on  oath,  to  a  tribunal  con- 
stituted for  the  purpose,  and  pursuing  certain  steps  prescribed  in 
the  law,  shall  be  discharged,  and  all  his  property  shall  be  vested 
in  the  sheriff,  for  the  benefit  of  the  creditors  at  whose  suit  he  is 
in  execution. 

In  the  case  at  bar,  the  forms  of  the  law  were  observed,  and  a 
certificate  of  discharge  obtained,  after  which  the  debtor  departed 
from  the  rules.  Conceiving  this  discharge  to  have  been  obtained 
by  fraud,  the  creditor  brought  a  suit  upon  the  bond,  and  tiie  court 
instructed  the  jury,  that  if  a  fraud  had  been  piactised  by  the  debt- 
or, although  neither  the  justices  "who  granted  the  certificate,  nor 
the  security,  partook  thereof,  yet  it  avoided  the  discharge,  and  lef* 
the  security  liable  in  this  action.  To  this  opinion  the  defendants' 
cour.scl  excepted,  and  upon  that  exception  the  cause  is  before  this 
court. 

The  certificate  of  discharge  may  be  granted  either  by  the  court 
sitting  in  its  ordinary  character  for  the  transaction  of  judicial  busi- 
ness, or  by  two  magistrates  who  are  constituted  by  law  an  cxtraor- 


Law  Miscellanies.  3%:i 

x 

dinary  cuuvt  for  this  particular  purpose.     Whether  granted  in  the 

one  mode  or  the  other,  it  is  of  equal  validity.  In  either  case,  the 
judgment  of  discharge  is  the  judgment  of  a  court,  and,  as  such,  is 
of  complete  ohligation. 

The  judgments  of  a  court  of  competent  jurisdiction,  although 
obtained  by  fraud,  have  never  been  considered  as  absolutely  void ; 
and  therefore,  all  acts  performed  under  them  are  valid,  so  far  as 
x'espects  third  persons.  A  s'leriff  who  levies  an  execution  under 
a  judgment  fraudulently  obtained,  is  not  a  trespasser,  nor  can  the 
person  who  purchases  at  a  sale  under  such  an  execution,  be  com- 
j)elled  to  relinquish  the  property  he  has  purchased.  All  acts  per- 
formed under  such  a  judgment  are  valid  acts  ;  all  the  legal  conse- 
quences which  follow  a  judgment  are,  with  respect  to  third  persons, 
precisely  the  same  in  one  obtained  by  fraud,  as  if  it  had  been  ob- 
tained fairly. 

When  the  person  who  has  committed  the  fraud  attempts  to 
avail  himself  of  the  act,  so  as  to  discharge  himself  from  a  pre- 
viously existing  obligation,  or  to  acquire  a  benefit,  the  judgment 
thus  obtained  is  declared  void  as  to  that  purpose ;  but  it  may  well 
be  doubted,  whether  a  penalty  would  be  incurred,  even  by  the  per- 
son committing  the  fraud,  for  an  act  which  the  judgment  would 
sanction.  Thus,  if  a  debtor  taken  on  mesne  process  escapes,  he 
may  be  retaken  by  the  authority  of  the  sheriff,  and  if  not  retaken, 
the  sheriff  may  be  liable  for  an  escape  ;  but  if  he  fraudulently  obtains 
a  judgment  m  his  favour,  in  consequence  of  which  he  goes  at 
large,  it  has  never  been  imagined  that  the  sheriff  could  retake 
him  on  suspicion  that  the  judgment  was  fraudulent,  or  be  liable  for 
an  escape  on  the  proof  of  such  fraud. 

Thus  too,  where,  as  in  Virgmia,  an  injunction  has  been  adjudg- 
ed to  discharge  the  body  from  confinement,  if  a  debtor  in  execu- 
tion, by  false  allegations,  obtains  an  injunction  whereby  his  body 
is  discharged  from  prison,  or  from  the  rules,  it  has  never  been  con- 
jectured tliat  tlie  injunction  thus  awarded  was  void,  and  the  acts 
performed  under  it  were  to  be  considered  as  if  the  injunction  had 
not  existed.  In  that  case,  it  would  not  be  alleged  that  there  was 
an  escape,  and  that  the  security  to  the  bond  for  keeping  the  rules 
was  liable  for  the  debt,  because  the  discharge  was  fraudulently  ob- 
tained ;  but  the  discharge  would  have  all  its  legal  effects,  in  like 
manner  as  if  no  imposition  had  been  practised  on  the  judge  by 
whom  it  was  granted. 

The  judgment  rendered  in  hia  favour  may  not  shield  the  frau- 
dulent debtor  from  an  original  claim,  but  it  is  believed  that  no  case 


52*  Law  Miscellanies. 

can  be  adtfuced,  v;here  an  act,  which  is  the  legal  consequence  of 
♦a  judgment,  has  in  itself  created  a  new  responsibility,  even  with 
respect  to  the  party  himself,  much  less  with  respect  to  third  per- 
sons, who  do  not  pjwticipate  in  the  fraud.  - 

It  w6uld  seem,  then,  upon  general  prmciples,  that  a  debtor 
who  has  departed  from  the  prison-rules  under  the  authority  of  a 
judgment  of  discharge,  granted  in  due  form  by  a  competent  tribu- 
nal, has  not  committed  an  escape  even  to  charge  himself,  much 
less  a  third  person.  Such  a  discharge  might  not  be  permitted 
to  protect  him  from  the  original  debt,  even  if  the  case  had  not  beeii 
particularly  provided  for  by  statute  ;  but  the  act  of  departing  from 
-the  rules,  aftsr  being  thus  discharged,  could  not  charge  him  with 
a  new  responsibility  to  which  he  was  not  before  liable,  much  less- 
will  it  impose  on  his  security  a  liability  for  the  debt.  Departing 
from  the  rules,  after  being  discharged  in  due  course  of  law,  is  not 
a  breach  of  the  condition  of  liis  bond. 

This  opinion  receives  great  additional  strength  from  those  ar- 
guments, di-awn  from  the  objects  and  provisions  of  the  act,  which 
have  been  forcibly  urged  from  the  bar. 

The  objects  of  the  act  unquestionably  are,  not  to  increase  the 
security  of  the  creditor,  but  to  relieve  the  debtor  from  close  im- 
prisonment in  the  confined  jails  of  the  country,  and  to  consult  his 
health,  by  giving  him  the  benefit  of  fresh  air.  But  as  this  indul- 
gence would  fui-nish  the  means  of  escaping  from  the  custody  of  the 
officer,  and  thereby  deprive  the  creditor  of  his  person,  it  was  thought 
necessary  to  guard  against  the  danger  which  the  indulgence  itself 
created,  not  to  guard  against  dangers  totally  unconijiected  with  this 
indulgence.  Security,  therefore,  ought,  in  reason,  to  be  required 
against  a  departure  from  the  rules  without  a  lawful  authority  so 
to  do,  because  the  means  of  such  departure  were  furnished  by 
being  allowed  the  use  of  the  rules ;  but  security  against  a  fraud 
in  obtaining  such  authority  need  not  be  j-equired,  because  the 
means  of  practising  that  fraud  are  not  facilitated  by  granting  the 
rules.  They  may  be  used  by  a  debtor  in  close  jail,  as  successfully 
as  by  a  debtoi'  admitted  to  the  rules. 

It  is  also  a  material  circumstance  in  the  construction  of  the  act, 
that  ample  provision  is  made  for  the  very  case.  A  new  capias 
may  be  awarded  to  take  the  person  of  the  debtor.  This  remedy 
is  not  allowed  in  the  case  of  an  escape  ;  and  it  is  strong  evidence 
that  the  legislature  did  not  contemplate  a  departure  from  the  rules 
under  a  certificate  issued  by  proper  authority,  as  an  escape  ;  that 
tii,e  remedy  given  the  creditor  is  competent  to  a  redress  of  the 


Law  Miscellanies.  325 

injury,  replaces  Idm  iiithe  situation  in  which  he  was  before  it  wad 
committed,  and  is  not  founded  on  the  idea  that  there  has  been" an 
escape. 

The  argument  founded  on  the  provisions  respecting-  the  pro- 
perly of  the  debtor,  also  bear  strongly  on  the  case.  They  con- 
firm the  opinion,  that  a  departure  from  tlie  rules,  under  a  certifi- 
cate of  dischrage  granted  by  a  proper  tribunal,  ought  not  to  be 
considered  as  an  escape.  So,  too,  does  that  provision  of  the  act 
which  requires  notice  to  the  creditor  and  not  to  the  security. 

Without  reviewing  tlie  various  additional  arguments  tvhicK 
have  been  suggested  at  the  bar,  the  court  is  of  opinion,  that  upon 
general  priiKiples,  strengthened  by  a  particular  consideration  of 
the  act  itself,  a  departure  from  the  rules  under  such  an  authority 
as  is  stated  in  the  proceedings,  is  not  an  escape  M'hich  can  charge 
the  security  in  the  bond  for  keeping  the  prison-rules,  although 
that  authority  was  obtained  by  a  fraudulent  representation  on  the 
part  of  the  debtor,  neither  the  magistrates  nor  the  security  having 
participated  in  that  fraud. 

There  is  error,  therefore,  in  the  instruction  given  to  the  jury, 
as  stated  in  the  third  bill  of  exceptions,  for  which  the  judgment 
is  to  be  reversed,  and  the  cause  remanded  for  further  trial. 

Judgment  reversed. 

PatersoN,  J.  As  to  the  third  exception,  which  embraces 
the  mam  point  in  the  cause,  my  opinion  differs  from  the  opinion  of 
the  majority  of  the  court,  and  accords  with  the  direction  given  by 
the  court  below.  The  condition  of  tlie  bond  is,  «  that  Simms  do 
well  and  truly  keep  himself  within  the  prison-rules,  and  thence  not 
to  depart  until  he  shall  be  discharged  by  due  course  of  law,  oi- 
pay  the  sum  of  1,285  dollars  and  45  cents,  to  George  Siacum, 
assignee,"  Sec.  The  act  that  will  not  exonerate  the  principal,  will 
not  exonerate  the  surety,  from  the  obligation  which  they  hav«, 
entered  into ;  for  the  surety  stands  on  the  same  floor  as  the  prin- 
cipal, and  assumes  the  like  character  of  responsibility,  in  regard 
to  the  terms  specified  in  the  condition  of  the  bond.  The  benefit 
of  the  act  of  insolvency,  if  obtahied  by  fraud  or  perjury  on  the  part 
of  Simms,  will  be  unavailing,  and  his  going  beyond  the  limits  of 
the  prison,  in  consequence  or  under  colour  of  a  discharge,  thus 
procured,  will  be  an  invalid  and  unwarrantable  departure.  Fraud 
infects  the  decision ;  and  the  legal  principle  is,  that  the  fraudulent 
person  shall  not  be  suffered  to  protect  himself  by  his  own  fraudu- 
lent act.     If  he  shoijld,  then  a  judgmenS  which  is  laid  in  fraud> 


32b  Law  Miscellanies. 

will,  as  in  the  present  case,  operate  to  the  extinction  of  a  legal, 
pre-existing  obligatiorl  or  contract.  But  a  discharge,  fraudulently 
obtained,  is  of  no  virtue — of  no  operation  ;  and  is,  in  truth  and  in 
law,  no  discharge ;  it  has  neither  legal  effect,  nor  even  legal  exist- 
ence as  to  the  party  himself,  and  the  surety,  who  stands  in  his 
shoes.  If  the  judgment  be  of  no  avail  as  to  the  principal,  it  will  be 
of  no  avail  as  to  the  surety  ;  it  cannot  be  ineffectual  as  to  the  one, 
and  operative  as  to  the  other.  The  discharge  must  be  legal  to  be 
valid,  and  to  exonerate  the  surety  from  the  special  condition  of  the 
bond.  The  judgment  itself  is  a  fraud  on  the  law  ;  and  I  can  dis- 
cern no  difference  between  the  debtor's  going  beyond  the  prison 
bounds  voluntarily,  or  under  colour  of  a  judgment  so  obtained  i 
except,  that  the  latter  is  a  case  of  deeper  die,  and  less  excusable 
in  a  legal  and  moral  view  than  the  former. 

Although  Simms  is  liable  to  be  imprisoned  by  virtue  of  a  new 
process,  yet  he  may  have  gone  out  of  the  jurisdiction  of  the  court ; 
or  if  not,  Slacum  will  be  deprived  of  the  benefit  of  the  bond  which 
Simms  and  Wise  executed. 

The  sheriff  stands  on  different  ground ;  for  he  is  exonerated 
from  all  liability,  by  an  express  provision  in  the  statute.  Besides, 
if  the  jvistices  have  jurisdiction  of  the  subject,  and  should  not  ex- 
ceed their  jurisdiction,  it  is  not  incumbent  on  the  sheriff  to  ex- 
amine into  tlie  regularity,  fairness,  and  validity  of  their  proceed- 
ings and  judgment ;  he  looks  at  the  instrument  of  discharge^ 
which,  emanating  from  a  competent  authority,  it  is  his  duty  to  obey. 
But  though  the  discharge  may  excuse  the  sheriff,  as  an  officer  of 
the  court,  it  will  not  excuse  the  party,  nor  his  surety.  As  to  them 
it  is  inoperative,  and  of  no  legal  efficacy. 


The  United  States  v.  Fisher  et  al.  assignees  of  Blight. 

IT  cannot  be  a  question,  but  that  it  is  more  pleasing  to  the 
mind  to  find  itself  with  the  majority  of  a  court  in  giving  an 
opinion  ;  and,  where  constrained  to  dissent,  it  cannot  be  un- 
pleasing  to  find  that  this  dissent  is  approved  by  the  bar  j  or 
even  by  intelligent  persons,  out  of  doors  ;  more  especially  if 
these  persons  are  of  a  standing  and  just  pretension  to  legal 
knowledge.     Even  an  exjiression  of  the  sense  of  the  multi- 


Law  Miscellanies.  32? 

tude,  is  not,  in  all  cases,  wholly  to  be  disregarded.  It  can- 
not be  ungrateful  to  have  one's  judgment  approved,  even  by 
sl  simple  mind,  because,  it  goes  some  length,  however  small,  in 
reconciling  to  ones-self  what  it  has  done ;  and  giving  the  sa- 
tisfaction of  believing  that  we  had  not  conceived  amiss  of 
the  law,  and  justice  of  the  case ;  but  to  have  it  approved  by 
the  intelligent,  is  still  a  greater  satisfaction  to  the  mind.  It  also 
contributes  to  inspire  confidence  in  our  own  strength,  and  to  se- 
cure independence  of  opinion  on  other  occasions.  This  holds 
still  more,  or  at  least  equally,  where  the  judgment  of  a  court 
below,  is  to  undergo  the  revision  of  a  court  of  error.  So  that 
though  a  judge,  or  a  court  below  would  from  conscience;  or  if 
this  was  the  weaker  power,  on  principle  of  delicacy,  and  a 
sense  of  honour;  or  what  is  more,  a  principle  of  self-preser- 
vation, be  willing  not  only  to  avoid  the  act,  but  also  to  es- 
cape the  imputation  of  attempting,  in  the  most  distant  de- 
gree, to  influence  the  revision  of  his  opinion,  yet  it  would 
give  him  more  pleasure  to  have  his  judgment  affirmed  ra- 
ther than  reversed ;  unless,  indeed,  from  reasons  that  had 
occurred  to  his  own  mind,  or  delivered  by  the  court  above, 
he  should  come  to  alter  his  opinion.  In  that  case,  he 
would  be  unworthy  of  the  name  of  judge,  that  would  not 
acquiesce,  and  be  internally  satisfied.  And  it  is  only  in  the, 
case  of  a  weak  understanding  that  cannot  well  afford  to  he 
thought  wrong,  that,  under  these  circumstances,  pain  would 
be  felt,  or  unfavourable  impressions  of  inferiority  would  oc- 
cur. 

It  is  no  uncommon  thing  for  a  reader  of  reports,  or  ni- 
ther,  it  is  too  common  to  look  at  nothing  more  than  the  de- 
cisions of  the  court,  and  to  take  it  for  granted,  that  the  mi?io- 
rity  are  in  the  wrong.  The  presumption  is  doubtless  against 
them  :  and  the  maxim  is,  stabitur  presumptioni  donee  in 
contrarium  probetur.  But  what  proof  can  be  offered,  but 
the  examination  of  the  reasons.  And  without  examining, 
the  conclusion  of  error  is  unfair.  There  cannot  be  a  more 
useful  exercise  of  mind  to  the  student  ihan  an  examination 
of  cases,  Avhere  the  court  have  been  divided.  Or  where  the 
''ourt  above  has  reversed  ih.c   (\v':]A'm  of  an  inferior;    as  in 


328  Law  MiscELVANixs. 

the  present  case,  which  was  an  appeal  from  the  dcciiiou  oi 
judge  Washington,  on  a  writ  of  error  from  the  circuit  conrf 
of  the  district  of  Pennsylvania.  It  may  have  been  seen  from 
some  things  already  stated  on  the  subject  of  the  acts  of  con- 
gress^ that  I  think  the  decision  of  Judge  Washingto7iy  and 
for  the  reasons  given  in  this  case  of  Blight  perfectly  correct. 
It  was  not  necessary  for  him  to  call  in  question  the  constitu- 
tionality of  the  acts  of  congress,  on  this  head  ;  or  of  the  act 
immediately  before  him ;  the  construction  that  ought  to  be 
put  upon  it  being  the  only  question.  The  court  above  re- 
versed his  cojistruction  ;  but  his  reasons  stand,  and  will  pre- 
vail. It  is  HOt  likely  that  a  construction  so  palpably  errone* 
cits  as  that  of  the  superior  court,  can  receive  the  sanction  of 
an  adjudication,  by  succeeding  judges.  At  all  events,  it  can- 
not be,  but  that  the  attention  of  congress  will  be  drawn  to 
it,  and  the  act  will  be  so  amended,  as  to  be  restrained  in 
the  extefit  of  such  construction  ;  or  repealed  altogether ;  and 
which  in  my  judgment  it  ought  to  be;  as  htix\^  unnecessary 
to  carry  the  powers  given  into  effect;  and,  therefore,  un- 
constitutional, and  void.  The  congress  is  charged  with  the 
common  defence^  and  the  payment  of  the  national  debt ;  but 
the  very  power  first  given,  sec.  8,  n.  1,  "  to  lay  and  collect 
taxes,"  &c.  supersedes  all  necessity  of  a  recurrence  to  pre- 
ference^  and  thus  taking  away  the  property  of  an  individual, 
without  compensation.  And  what  compensation  could  be 
given  but  the  thing  itself.  For  it  is  the  debt  due  that  is  taken 
from  the  creditor  by  the  preference  given  to  the  union* 

The  question  is,  says  judge  Washington,  "have  the 
United  States  a  right  in  all  cases  whatsoever  to  claim  a  pre- 
ference of  other  creditors  in  the  payment  of  debts." 

Waskingtoj:,  J  Although  I  take  no  part  in  the  decisior, 
of  this  cause,  i  feel  myself  justified  by  the  importance  of  the  ques- 
tion in  declaring  the  reasons  which  induced  the  circuit  court  of 
Pennsylvania  to  proncunce  the  opinion  which  is  to  be  re-exaiilir.ed 
here. 

In  any  instance  where  I  am  so  unfortunate  as  to  differ  v.'ith 
this  court,  I  cannot  fail  to  doubt  the  correctness  of  my  own  opinion,. 
Tkit  if  I  cannot  feefcor.vlnced  of  the  oror.  I  owe  it  in  some  mca- 


Law  Miscellanies.  329 

sure  to  myself  and  to  those  who  maybe  hijurcd  by  the  expense 
and  delay  to  which  they  have  been  exposed  to  shew  at  least  that 
the  opinion  was  not  hastily  or  inconsiderately  given. 

The  question  is,  have  the  United  States  a  right  in  all  cases 
whatever  to  claim  a  preference  of  other  creditors  in  the  payment 
of  debts.  At  the  circuit  court  the  counsel  for  the  United  States 
disclaimed  all  idea  of  founding  this  right  upon  prerogative  princi- 
ples, and  yet,  if  I  am  not  greatly  mistaken,  the  doctrine  contended 
for  places  this  right  upon  ground  at  lest  as  broad  as  Avould  have 
been  asserted  in  an  English  court. 

The  whole  question  must  turn  upon  the  construction  of  acts 
of  congress,  and  particularly  that  of  the  3d  of  March  1797.  The 
title  of  the  law  is  "  an  act  to  provide  moi'e  effectually  for  the  set- 
tlement of  accounts  between  the  United  States  a7id  receivers  of 
public  inoneij." 

The  first  section  describes  more  specially  the  persons  who  are 
the  objects  of  the  law;  points  out  the  pailicular  ofiicer  whose  du- 
ty it  shall  be  to  institute  suits  against  those  public  delinquents 
thus  marked  out ;  declares  the  rate  of  interest  to  be  recovered 
upon  balances  due  to  the  United  States,  and  imposes  a  forfeiture 
of  commissions  on  the  delinquent. 

The  2d  section  defines  the  kind  of  evidence  to  be  admitted  on 
the  part  of  the  United  States,  in  the  trial  of  suits  in  all  cases  of  de- 
linquency. 

The  3d  section  gives  to  the  United  States  in  such  actions,  a 
preference  of  all  other  suitors  in  court,  by  directing  the  trial  of 
such  causes  to  take  place  at  the  retui-n  term  upon  motion,  unless 
the  defendant  will  make  oath  that  he  is  entitled  to  credits  which 
have  been  submitted  to  the  consideration  of  the  accounting  officers 
of  the  treasury,  and  rejected. 

The  4th  section  takes  up  the  case  of  the  defendant,  and  declares 
under  wiiat  circumstances  he  shall  be  entitled  to  the  benefit  of 
off  sets. 

The  5th  section  brings  us  to  an  important  part  of  the  trial,  and 
furnishes  a  rule  to  govcni  the  court  hi  the  judgment,  it  is  to  ren- 
der, in  cases  wiicrc  the  claim  of  the  United  States  might,  by  rea- 
son of  the  insolvency  of  the  debtor,  go  unsatisfied,  unless  preferred 
to  that  of  a  private  citizen. 

The  6tu  section  is  general  in  its  terms,  and  relates  to  execu- 
tions where  the  defendant  or  his  property  is  to  be  found  in  any 
district  other  than  that  in  which  the  judgment  was  rendered. 
'  1'  T 


^ou  "Lav:  Miscellanies. 

This  is  a  concise  view  of  the  different  parts  of  this  act,  ind 
I  shall  now  cxanriine  more  particularly  the  expressions  of  the  5th 
section  taken  in  connection  with  tlwjse  which  precede  it. 

The  words  are  "  that  where  any  revemie  officer  or  other  fiev' 
son  hereafter  becoming  indebted  to  the  United  States  by  bond  or 
otherwise,  shall  become  insolvent,  the  debt  due  totlie  United  States 
shall  be  first  satisfied,"  &c. 

It  is  conceded  that  the  words  "  or  other  person"  are  broad 
enough  to  comprehend  every  possible  case  of  debts  due  to  the  Uni- 
ted States,  and  therefore  a  literal  interpretation  is  contended  for 
by  those  who  advocate  the  intei'cst  of  the  United  States,  On  the 
other  side,  a  limitation  of  those  expressions  is  said  to  be  more 
consonant  with  the  obvious  meaning  of  the  legislature,  which  con- 
templates those  debtors  only  Avho  are  accountable  for  public  mo- 
ney. 

Where  a  law  is  plain  and  unambigitous,  whether  it  be  express- 
ed in  general  or  limited  terms,  the  legislature  should  be  intended 
to  mean  what  they  have  plainly  expressed,  and  consequently  no 
room  is  left  for  construction.  But  if,  from  a  view  of  the  whole 
law,  or  from  other  laws  in  pari  maieria,  the  evident  intention  is  dif- 
ferent from  the  literal  import  of  the  terms  employd  to  express  it 
in  a  particular  part  of  the  law,  that  intention  should  prevail,  for 
that  in  fact  is  the  Avill  of  the  legislature. 

If  a  section  be  introduced  which  is  a  sfrangcr  to  and  uncon- 
nected with  the  purview  of  the  act,  it  must  nevertheless  take  ef- 
fect according  to  its  obvious  meaning,  independent  of  all  ijifluence 
from  other  parts  of  the  law.  Nay,  if  it  be  a  part  of  the  same  sub- 
ject, and  either  enlarges  or  restrains  the  expressions  used  in  other 
parts  of  the  same  act,  it  must  be  interpreted  according  to  the  im- 
port of  the  words  used,  if  nothing  can  be  gathered  from  such  other 
parts  of  the  law  to  change  the  meaning.  But  if  in  this  latter  case, 
general  words  are  used  Avhich  import  moie  than  seems  to  have 
been  within  the  purview  of  the  law,  or  of  the  other  parts-  of  th6 
law,  and  those  expressions  can  be  restrained  by  others  used  in  the 
same  law,  or  in  any  other  upon  the  same  subject,  they  ought  in 
my  opinion  to  be  restrained. 

So  if  the  literal  expressions  of  the  law  would  lead  to  absurd, 
unjustor  inconvenient  consequences,  such  a  construction  should  be 
given  as  to  avoid  such  consequences,  if,  from  the  whole  purview  of 
the  la^^■,  and  giving  effect  to  the  words  used,  it  may  fairly  be  done. 

Tl.cse  rules  are  not  merely  artificial ;  they  arc  as  clearly  found- 


Law    MiSCELLANlESc  531 

cd  ill  plain  sense,  as  they  ai-e  certainly  warranted  by  the  principles 
of  common  law. 

The  subject  intended  to  be  lef^islatcd  upon  is  sornetimes  stat- 
ed in  a  preamble,  sometimes  in  the  title  to  the  law,  and  is  some- 
times, I  admit,  mistated,  or  not  fully  stated.  The  preamble  of 
an  act  of  parliament  is  said  to  be  a  key  to  the  knowledge  of  it,  and 
to  open  the  intent  of  the  law-makers :  and  so  I  say  as  to  the  title 
of  a  law  of  congress,  which  being  the  deliberate  act  of  those  who 
make  the  law,  is  not  less  to  be  respected  as  an  expression  of  their 
intention,  than  if  it  preceded  the  enacting  clause  in  the  form  of 
a  preamble.  But  neither  the  title  or  preamble  can  be  resorted 
to  for  the  purpose  of  controuling  the  enacting  clauses,  except  in 
cases  of  ambiguity,  or  where  general  expressions  are  used  incon- 
sistent or  unconnected  with  the  scope  and  piu'view  of  the  whole 
law. 

They  are  to  be  deemed  true,  unless  contradicted  by  the  enact- 
ing clauses,  and  it  is  fair  in  the  cases  I  have  stated  to  argue  from 
them. 

The  object  of  this  law  then,  as  declared  by  tlie  title,  is  to  pro- 
vide for  the  effectual  settlement  of  debts  due  to  the  United  States, 
from  receivers  o/j7ublic  money.  To  effect  this,  suits  are  directed, 
the  species  of  evidence  to  support  the  claim  on  the  part  of  the 
plaintiff  is  poiiited  out,  and  a  speedy  trial  provided ;  on  the  part 
of  the  defendant,  a  limited  right  to  oppose  the  claim  by  offsets  is 
provided,  and  the  claim  of  the  United  States  is  to  have  a  preference 
of  other  creditors,  where  the  debtor  is  unable  to  satisfy  the  whole. 
Here  then  is  one  entire  connected  subject — the  different  provi- 
sions of  the  law  constituting  the  links  of  the  same  chain,  the  mem- 
bers of  the  same  body.  It  will  r;ot,  I  presume,  be  denied,  that 
the  three  first  sections  of  the  law  apply  to  those  only  who  are  de- 
clared by  the  title  to  be  the  objects  of  its  provisions.  The  4th 
§ection  is  the  first  v/hich  uses  general  expressions,  without  a  re- 
ference to  those  who  had  before  been  spoken  of  j  and  yet  I  think 
it  will  hardly  be  contended  that  this  section  is  not  closely  and  inti- 
mately connected  with  the  same  subject. — When  we  come  to  the 
5th  section  the  reference  to  the  three  first  sections  is  again  resum- 
ed, with  the  addition  of  the  words  "  or  any  other  person."  So 
that  instead  of  the  words  "  revenue  officers  or  otiier  persons  ac- 
countable for  fiublic  money,"  used  in  the  first  section,  this  sec- 
tion uses  the  words  "  revenue  officers  or  otiur  person.t  indebted  to 
the  United  S^at^r.,'" 


332  Law  Miscellanies. 

Now  it  is  obvious  that  these  expressions  may  have  precisely 
the  same  meaning,  so  as  to  comprehend  the  same  persons,  al- 
though the  latter  may  be  construed  to  include  persons  not  within 
the  meaning  of  the  first  section.  For  fiersons  accountable  f(jr  fiub- 
lic  money ^  are  also  other  jicrsons  than  revenue  officers  indebted  to 
the  United  States  ;  and  the  latter  may,  by  a  construction  confor- 
mable to  the  other  parts  of  the  law,  r\\C2i\\  persons  accountable  for 
public  money ;  and  by  an  intended  construction,  they  may  com- 
prehend others,  who  in  no  sense  of  the  expressions  used,  can  be 
said  to  be  accountable  for  public  money. 

It  is  then  to  be  inquired,  is  the  court  bound  by  any  known 
rules  of  law  to  give  to  the  Avords  thus  used  in  the  5th  section  a 
meaning  extensive  enough  to  comprehend  persons  never  contem- 
plated by  the  title  of  the  law,  and  most  sedulously  excluded  by 
the  three  first  sections  ?  Does  justice  to  the  public,  or  convenience 
to  individuals  demand  it  ?  Is  such  a  construction  necessary  in  or- 
der to  give  effect  to  any  one  expression  used  by  the  legislature  ? 

Shall  Ave  violate  the  manifest  intention  of  the  legislature,  if 
%ve  stop  short  of  the  point  to  which  we  are  invited  to  go  in  the  con- 
struction of  this  section  ? 

To  all  these  questions  I  think  myself  warranted  in  ansAvering 
in  the  negative. 

As  to  the  first.  Do  the  principles  of  equity,  or  of  strict  jus- 
tice discriminate  betM'^een  individuals  standing  in  equali  jure  and 
claiming  debts  of  equal  dignity  ? 

The  nature  of  the  debt^  may  Avell  Avarrant  a  discrimination ; 
but  not  so,  if  the  privilege  be  merely  of  a  personal  nature.  The 
sovereign  may  in  the  exercise  of  his  poAvers  secure  to  himself 
this  exclusive  privilege  of  being  preferred  to  the  citizens,  but  this 
is  no  evidence  that  the  claim  is  sanctioned  by  the  principles  of 
immutable  justice.  If  this  right  is  asserted,  individuals  must 
submit ;  but  I  do  not  find  it  in  my  conscience  to  go  further  in  ad- 
vancement of  the  claim,  than  the  Avords  of  the  laAV  fairly  interpret- 
ed, in  relation  to  the  Avhole  law,  compel  me.  But  I  do  not  think 
that  congress  meant  to  exercise  their  poAver  to  the  extent  contend- 
ed for.  First,  because  hi  every  other  section  of  the  law  they  have 
declared  a  different  intent ;  and  secondly,  because  it  Avould  not 
only  be  productive  of  the  most  cruel  injustice  to  individuals,  but 
Avould  tend  to  destroy  more  than  any  other  act  I  can  imagine  all 
confidence  between  man  and  man.  The  preference  claimed  is  not 
only  unequal  in  respect  to  piivatc  citizens,  but  is  of  a  nature 
against  Avhirli  the  most  prudent  man  cannot  guard  himself.     As 


Law  Miscellanies.  333 

to  public  officers  and  receivers  of  public  money  of  all  descriptions, 
they  are,  or  may  be  known  as  such  ;  and  any  person  dealing  with 
them,  does  it  at  the  peril  of  being  postponed  to  any  debts  his 
debtor  may  owe  to  the  United  States,  shollld  he  become  unfortu- 
nate. He  acts  with  his  eyes  open,  and  has  it  in  his  power  to  cal- 
culate the  risk  he  is  willing  to  run. 

But  if  this  preference  exists  in  every  possible  case  of  contracts 
between  the  United  States  and  an  individual,  there  is  no  means  by 
which  any  man  can  be  apprized  of  his  danger,  in  dealing  with  tlic 
same  person. 

2.  Is  this  broad  construction  necessary  in  order  to  give  etToct 
to  the  expressions  of  the  law  ?  I  have  endeavoured  to  sliew  that  all 
accountable  agents  are  other  persons  than  revenue  officers  indebt- 
ed to  the  United  States.  The  words  then  "  other  persons"  are 
satisfied  by  comprehending  all  those  persons,  to  whom  the  first 
section  extends. 

3.  Is  this  construction  rendered  necessary  to  fulfil  the  manifest 
intention  of  the  l.egislature  ?  So  far  from  it,  that  to  my  mind,  it  is 
in  direct  opposition  to  an  intention  plainly  expressed  by  all  the 
other  parts  of  the  law.  To  prove  this  I  again  refer  to  the  title  of 
the  law ;  to  the  three  first  sections,  which  are  in  strict  conformity 
with  it,  and  that  too  by  express  words ;  and  to  the  fourth  section, 
which  is  so  plainly  a  pait  of  the  same  subject,  that  it  cannot  be 
construed  to  go  farther  than  those  which  precede  it.  Is  the  fifth 
section  a  stranger  to  the  others  ;  unnaturally  placed  there  without 
having  a  connection  with  the  other  section  ? 

If  this  be  the  case-,  I  have  already  admitted  rules  of  construc- 
tion, strong  enough  to  condemn  the  opinion  I  hold.  But  let  us 
examine  this  point. 

The  object  of  the  four  first  sections  is  to  enforce  by  suit^  where 
necessary,  the  payment  of  debts  due  to  the  United  States  from  a 
particular  class  of  debtors.'  It  points  out  the  officer  who  is  to  or- 
der the  suit,  declares  at  what  term  the  cause  shall  be  tried,  lavs 
down  rules  of  evidence  to  be  regarded  in  support  of  the  action, 
extends  to  the  defendant  the  benefit  of  making  ofFsetts  under  cer- 
tain qualifications,  and  then  most  naturally,  as  I  conceive,  comes 
the  fifth  section,  relating  to  the  judgment  which  the  court  is  to 
render  in  case  a  com  est  should  ensue  between  the  United  States 
and  individual  creditors  on  account  of  inability  in  the  debtor  to 
satisfy  the  whole.  What  if  an  individual  creditor  should  attach 
the  property  of  the  debtor  before  the  United  States  had  taken  steps 
to  recover  their  debt  ?    Or  if  the  debtor  should  assign  away  Ms 


;jJ4  l^AW    iMlSCEl.LANIES. 

property,  or  it  sliould  be  claimed  by  assignees  under  a  commission 
of  bankruptcy  ;  or  the  defendant  being  an  executor,  should  plead 
fully  administered  except  so  much  as  would  be  sufficient  to  satisfy 
judgments,  bond  debts,  or  other  debts  supciior  in  dignity  to  that 
of  the  United  States  ?  This  section  establishes  a  plain  rule  by 
which  the  court  must  proceed  in  rendering  its  judgment  when- 
ever those  cases  occur.  What  would  have  signified  all  the  other 
provisions  of  the  law,  unless  a  rule  of  decision  had  been  prescrib- 
ed in  cases  where  otherwise  the  United  States  might  never  ob- 
tain the  fruit  of  those  steps  which  their  officers  Avere  pursuing  ? 

Can  a  section  in  a  law  which  professes  to  afford  a  remedy  in  a 
particular  process  of  law,  be  said  not  to  belong  to  the  law,  when 
it  leads  to  the  point  of  a  judgment,  which  is  the  consummation  of 
the  proceedings  in  the  case  ?  I  think  not ;  and  therefore  I  cannot 
acquiesce  in  the  opinion  that  the  5th  section  is  unconnected  with 
the  other  parts  of  the  law. 

I  have  before  observed  that  the  4th  section  is  the  first  Avhich 
uses  general  expressions,  without  reference  to  those  which  had 
before  been  particularly  mentioned ;  but  that  when  we  come  to 
the  5th  section  the  reference  is  again  taken  up,  with  the  addition 
of  those  words  which  produce  the  difficulty  of  the  case. 

Now  I  ask  in  the  first  place,  what  necessity  was  there  for  de- 
parting from  the  mode  of  expression  used  in  the  4th  section, 
which  for  the  first  time  is  general,  without  particular  reference 
to  any  of  the  persons  before  described.  Would  it  not  have  bedn 
as  well  in  the  5th  as  in  the  4th  section,  to  say  "  that  where  amy  in- 
"  dividual  becoming  indebted  to  the  United  States,  shall  become 
♦•  insolvent,"  &c.  What  reason  can  be  assigned  for  the  specifica- 
tion of  revenue  officers.,  one  class  of  persons  mentioned  expressly 
in  the  1st  section,  intended  in  the  3d  and  3d  by  plain  words  of  re- 
ference, and  clearly  meant  in  the  4th,  when  it  must  be  admitted 
that  the  words  used  in  the  4th  section,  or  the  words  "  other  per- 
sons," in  the  5th  would  have  comprehended  revenue  officers  if 
they  were  broad  enough  to  include  every  description  of  persons 
indebted  to  the  United  States.  Unless  they  are  construed  to  limit 
and  restrain  the  generality  of  the  words  "  other  persons,"  they 
are  absolutely  without  any  use  or  meaning  whatever.  .  If  the  pre- 
ceding sections  had  applied  only  to  revcriue  officers,  then  from  ne-- 
ccssity  we  must  have  construed  the  words  "  other  persons,"  as 
broad  as  their  natural  import  would  warrant,  because  otherwise, 
they  would  have  been  nugatpry,  and  we  would  have  found  no  rule 


Law  Miscellanies.  S3 5 

in  the  law  itself,  bv»  which  to  limit  the  generality  of  the  expres- 
sion. 

But  when  the  law  professes  in  its  title  to  relate  to  all  account- 
able agents  besides  revenue  officers,  and  the  first  section  specifies 
amongst  these  agents,  "  revenue  officers,"  we  have  a  rule  by 
which  to  restrain  the  sweeping  expressions  in  the  5th  section,  viz. 
"  or  other  person  accountable,  or  indebted  as  aforesaid,"  This 
construction  renders  the  law  uniform  throughout,  and  consistent 
with  what  it  professes  in  every  other  section. 

2d,  In  confirmation  of  this  consUuction,  the  62d  section  of  the 
bankrupt  law  does,  in  my  opinion,  deserve  attention.  If  the  United 
States  were,  at  the  time  that  law  passed,  entitled  to  a  preference  in 
every  possible  case,  by  virtue  of  the  general  expressions  in  the  law 
have  just  been  considering,  what  necessity  Avas  there  for  limiting 
the  saving  of  the  right  of  preference  to  debts  due  to  the  United 
States,  *'  as  secured  or  provided  by  any  law  hei-etofore  passed." 
This  mode  of  expression  leads  me  to  conclude  that  the  legisla- 
ture supposed  there  were  some  cases  where  this  preference  had 
not  been  provided  for  by  law.  If  not,  it  would  certahily  have  been 
sufficient  to  declare,  that  the  bankrupt  law  should  not  extend  to,  or 
affect  the  right  of  preference  to  prior  satisfaction  of  debts  due  the 
United  States." 

It  will  be  seen  from  the  above,  that  the  whole  object  of 
judge  Washington's  opinion,  and  it  was  all  that  was  neces- 
sary for  the  point  in  issue,  or  matter  in  controversy,  was  the 
construction  of  the  terms  "  or  other  person."  In  this,  no 
doubt,  he  was  correct,  for  the  whole  of  the  language  of  the 
acts  taken  together  cannot  but  show,  that  these  words  had 
been  foisted  in,  or  stand  so  isolated  as  to  be  incongruous  with 
the  rest.  They  must  be  rejected  or  explained :  taken  by  them- 
selves they  involve  the  most  manifest  inconsistency  with 
other  parts  of  the  act. 

But  it  is  my  choice  to  go  farther  than  Judge  Washing- 
ton and  attack  the  root,  the  constiUiticnality  of  these  laws,  or  of 
this  law.  The  doctrine  is  monstrous,  that  the  corigrcss  sho7ild 
be  thought  to  have  the  poiver  to  give  the  union  u  preference 
in  any  case  whatsoever.  To  the  act  providing  that  the  com- 
mencement of  a  suit  should  constitute  a  lien,  I  have  no  excep- 
tion. But  to  cut  out  orhtvheirs^  or  prior  debts  due  and,  t«kc 
the  whole,  is  that  to  Mhich  I  excepi. 


336  Law  Miscellanies. 


Rhinelandci"  V.  Insurance  Company'of  Pennsylvania.  4  Cranch,  29. 

"  This  was  a  case  certified  from  the  circuit  court  for  the 
district  of  Pennsylvania,  in  which  the  opinions  of  the  judges 
of  that  court  were  opposed  to  each  other."  And  in  the  de- 
cision of  the  supreme  court,  one  judge  is  spoken  of  as  doubt- 
ing. 

I  do  not  know  any  question  to  chich  the  "  non  it  areferC 
would  apply  with  less  propriety,  than  in  this  case. 

As  a  new  question,  it  could  be  determined  only  on  the 
principle  of  mercantile  convenience,  which  is  the  great  prin- 
ciple upon  which  every  question  of  this  nature  ought  to  be 
decided.  It  was  stated  by  the  court  to  be  a  new  question. 
In  the  case  of  Hamilton  v.  Mendez,  says  chief  justice  Mar- 
shal, lord  Mansfield  leaves  it  completely  undetermined  whe- 
ther the  state  of  the  loss,  at  the  time  the  abandonment  is  made 
must  fix  the  right  of  the  parties  to  recover  on  an  action  after- 
wards brought.''''  The  supreme  court  of  Pennsylvania,  chief 
justice  Tilghman,  he.  sitting,  it  was  holden  that  at  least  the 
itbelling,  as  in  that  case,  would  justify  an  abandonment.  I 
did  not  understand  it  to  be  laid  down  in  that  case  of  Dutilgh 
V.  Gatliff,  that  nothing  short  of  having  libelled,  would  justify. 
Bat  that  at  least  a  capture,  and  carrying  in  for  adjudication, 
and  libelling,  would.  This  was  a  matter  short  of  condemnation. 

Taking  up  the  matter  upon  original  ground,  I  would  en- 
quire what  is  it  that  would  constitute  a  deviation,  such  as  to 
excuse  the  underwriter;  or  what  is  it  that  would  constitute 
such  delay,  as  would  affect  the  right  of  abandonment  as  for  a 
total  loss  ?  If  a  point  insured  against,  occasions  a  detention  to 
such  extent,  or  produces  a  deviation,  will  not  the  measure  of 
the  one  be  the  measure  of  the  other  ?  I  would  take  it  that  the 
moment  the  peril  attaches,  and  has  an  effect  to  the  amount 
of  the  whole,  an  action  for  a  total  loss  accrues.  I  know  no 
medium  that  can  be  taken  between  this,  and  ?ifnal  condem- 
nation, without  great  embarrassment.  I  would  have  held  ir, 
were  it  a  new  case  that  the  right  of  abandonment  arises  o.i 
\\\z  attachment  of  the  peril;  but  not  that  the  injured  was 


Law  Miscellanies.  337 

bound  to  abandon,  on  that  happening,  but  might  take  time 
in  using  means  with  due  diligence  to  escape  from  it.  Inde- 
pendent of  marine  regidations^  or  the  contract  of  the  parties, 
I  would  have  taken  this  to  be  the  law ;  because,  independent 
of  regulation,  or  the  contract  of  the  parties,  I  could  conceive 
of  no  other  general  rule  that  would  work  throughout,  and 
secure  an  indemnity.  Upon  the  abstract  principle,  I  ^ad 
taken  it,  that  though  Lord  Mansfield  had  not  decided  it, 
yet  that  whatever  would  have  justified  the  abandonment, 
supposing  the  insurer,  and  insured  to  be  upon  the  spot  at  the 
time  the  peril  happened,  and  the  assured  to  have  oifered  to 
abandon,  his  right  was  the  same  when  the  intelligence  of 
that  fact  cvLrae  to  hand,  without  regard  to  what  in  the  mean 
time  had  taken  place.  This  rule  is  simple,  and  intelligible, 
and  any  other  rule  leads  to  embarrassment. 

Some  certain  time  is  usually  stipulated  in  the  policy  after 
which,  on  abandonment,  payment  is  demandable  of  the  wri- 
ter.    Suppose  that  period  to  elapse,  and  payment  to  be  made, 
there  must  be  a  repayment,  on  it  turning  out  that  a  detention 
was  over,  or  that  a  restoration  had  taken  place.  There  may  be 
an  opening  and  shutting  of  abandonment,  if   it  is  to  depend 
upon  a  new  state  of  the  fact.     In  all  cases  the  insurer,  who 
usually  wishes  to  escape  the  having  an  abandonment  thrown 
upon  him,  will  say,  wait  till  I  see  v/hether  the  state  of  the 
fact  may  not  be  changed,  and  which  may  relieve  me  from  the 
necessity   of  accepting    the   abandonment.     In   that  case  a 
clause  of  30  days,  or  other  time  is  useless;  or,  rather  incon- 
sistent with  the  idea  of  the  state  of  the  fact  case.     The  verv 
inserting  such  a  clause  proves,  that,  in  the  understanding  of 
the  contracting  parties,  the  payment  on  abandonment  coukl 
have  no  relation  to  the  state  of  the  fact  changing  from  what 
it  was,  when  the  intelligence  set  out  if  I  may  so  speak,  that 
afterwards  came  to  the  insured,  and  on  which  the  abandon- 
ment was  made. 

Suppose  on  suit  brought,  in  answer  to  an  allegation  of 
the  declaration,  that  a  vessel  had  been  taken,  it  was  pleaded, 
that  she  had  been  restored,  on  demurrer  would  not  that  be 
lioldcn  a  d'  part  are  ;  because  the  question  \\  as  not  v.hat  had 

V  V 


338  Law  Miscellanies.   - 

happened,  after  she  was  lost  to  me,  but  whether  she  had 
ceased  to  be  in  my  power  at  any  time,  whether  from  physi- 
cal, or  moral  force ;  so  that  for  a  time  I  was  disabled  from 
the  prosecution  of  my  voyage.  It  is  matter  of  election  with 
me  whether  to  waive  an  abandonment  instantly  on  the  attach- 
ment of  the  peril,  or  to  endeavour  to  release  myself.  If  I 
chuse  not  to  abandon  on  the  peril  attaching,  the  doctrine  of 
abandonment  in  reasonable  time,  or  otherwise,  will  then 
come  into  view. 

Chief  Justice  Marshall  says  that  ^''commercial  contracts 
are  seldom  r'tghtly  expounded  by  a  course  of  artificial  reason' 
tng-.''^  I  am  at  a  loss  to  know  by  what  otherwise  they  are  to 
be  expounded  but  the  application  of  reason  where  the  rule 
is  said  not  he  Jixed,  and  the  r/^  inconvenie^ite  must  guide. 
It  is  of  more  consequence  with  me  than  a  dictum  of  my  lord 
.somebody  to  this  or  that  effect ;  or  even  a  decision  of  several 
my  lords.  For  decisions  are  but  evidence  of  the  reason  of 
others,  but  the  reason  itself  deduced  from  the  inconveniente, 
is  paramount,  in  settling  what  the  decision  ought  to  be. 

But  the  non  ita  refert  will  induce  an  acquiescence  where 
the  rule  may  be  helped  by  the  contract  of  the  parties  when 
known  and  established.  As  in  this  case,  where  for  the  sake 
of  uniformity  in  the  laxv  of  insurance,  the  courts  of  the  states 
have  conceded  to  this  ride  of  the  supreme  court  of  the  wiiofi. 
It  has  been  done  in  Pennsylvania,  and  I  presume  elsewhere. 
But  that  has  nothing  to  do  with  the  principles  on  which  it 
ought  to  have  been  placed,  and  an  examination  of  the  opi- 
nions of  different  members  of  a  court  M'ho  have  dissented, 
or  doubted  in  the  ijitrcduction  of  the  ride. 


Ex  parte  Bollman,  and  ex  parte  Swartwout.  4  Cranch,  75. 

In  this  case  Johnston  justice  dissented;  and  my  object  is 
to  examine  his  opinion.  And  at  this  moment  of  entering  on 
it,  I  do  not  know  whether  I  shall  support  his  dissent,  or  de- 
clare against  it.     For  I  write  as  I  read.     And  it  is  chief- 


Law  Miscellanies.  339 

iy  because  I  saw  there  was  a  dissent  in  a  case  of  great  impor- 
tance, I  mean  involving  a  principle  of  great  importance,  that 
I  have  been  led  to  examine  it. 

"  I  am  far,  says  the  Judge,  very  far  from  denying  the  ge- 
neral authority  of  adjudications.  Uniformity  in  decisions  is 
often  as  important  as  their  abstract  justice.  But  I  deny 
that  a  court  is  precluded  from  the  right,  or  exempted  from 
the  necessity  of  examining  into  the  correctness,  or  consisten- 
cy of  its  own  decisions,  or  those  of  any  other  tribunal." 
This  is  excellent,  and  I  am  so  pleased  with  it,  it  is  so  con- 
genial witli  my  own  way  of  thinking,  that  I  shall  be  sorry  it 
I  shall  be  under  the  necessity  of  finding  this  Judge  wrong- 
in  the  case  before  me. 

He  adds  further,  "  strange  indeed,  would  be  the  doctrine, 
that  an  inadvertency  once  comm.itted  by  a  court,  shall  ever 
after  impose  on  it  the  necessity  of  persisting  in  its  error.  A 
case  that  cannot  be  tested  by  principle  is  not  laxv  ;  and,  in  a 
thousand  instances  have  such  cases  been  declared  so  by 
courts  of  justice."  This  is  manly ;  and  spoken  like  a  man 
of  sense,  and  of  independent  mind,  that  has  a  conscious- 
ness of  its  own  strength.  He  proceeds.  "  The  claim  of  the 
prisoners  as  founded  on  precedent,  stands  thus.  The  case  of 
Hamilton  is  strikingly  similar  to  the  present.  The  prisoner 
had  been  committed  by  the  order  of  the  district  judge  on  a 
charge  of  high  treason.  A  writ  of  habeas  corpus  was  issued 
by  the  supreme  court,  and  the  prisoner  bailed  by  their  order. 
The  case  of  Burford  was  also  strictly  parallel  to  the  present. 
But  the  writ  in  the  latter  case  having  been  issued  expressly 
on  the  authority  of  the  former,  it  is  presumed  that  it  gives 
no  additional  force  to  the  claim,  but  must  rest  upon  the 
strength  of  the  case  upon  which  the  court  acted. 

"  It  appears  to  my  mind,  continues  the  judge,  that  tht; 
case  of  Hamilton  bears  upon  the  face  of  it,  evidence  of  its 
being  entitled  to  like  consideration;  and  that  the  authority 
of  it  was  annihilated  by  the  very  able  decision  in  Marbury 
V.  Madison." 

What  evidence  could  it  bear  upon  the  face  cj  it^  but  the 
reasons  upon  which  it  went;  or  the  mere  circumstance  of  the 


340  Law  Miscellanies. 

court  taking  jurisdiction  I  But  the  decision  in  Marbury  v, 
Madison,  annihilated  the  aitthoritij  of  this  case.  In  this 
case,  says  the  judge,  it  was  decided  that  congress  could  not 
vest  in  the  supreme  court,  any  original  powers,  beyond  those 
to  which  this  court  is  restricted  by  the  constitution.  That 
an  act  of  congress  vesting  in  this  court  the  power  to  issue  a 
writ  oi  mandamus  in  a  case  not  within  their  ori^f/zo/ jurisdic- 
tion, was  iinconstitutional  and  void.  In  the  case  of  Hamilton 
the  court  does  not  assign  the  reasons  on  which  it  founds  its 
decisions,  but  it  is  fair  to  presume  that  they  adopted  the  idea 
which  appears  to  have  been  admitted  by  the  district  attorney, 
in  his  argument,  viz.  that  this  court  possessed  a  concurrent 
power  with  the  district  court,  in  admitting  to  bail.  Now  a 
concurrent  power  in  such  a  case  must  be  an  original  power ; 
and  the  principle  case,  Marbury  v.  Madison,  applies  as 
much,  to  the  issuing  of  a  habeas  corpus^  in  a  case  of  treason, 
as  to  the  issuing  of  a  mandamus  in  a  case  not  more  remote 
from  the  original  jurisdiction  of  the  court." 

All  this  is  correct.  The  court  are  involved  in  an  incon- 
sistency ;  but  what  will  he  say  to  me,  who  deny  the  case  of 
Marbury  v.  Madison,  to  be  laxu,  and  set  up  the  cases  of  Ha- 
milton 2ind  Burford? 

Disembarrassing  the  question  from  the  effect  oi  precedent, 
he  says  he  will  proceed  to  consider  the  construction  of  the 
sections  of  the  act  of  congress,  on  which  the  issuing  a  habeas 
corpus  must  depend.  That  is  right ;  let  us  neither  hold  the 
court  to  Marbury  v.  Madison,  nor  support  them  by  Hamil- 
ton and  Burford. 

It  is  necessary  to  presume,  says  the  judge,  that  the  case 
of  treason  is  one  in  which  this  court  possesses  neither  origi- 
nal^ nor  appellate  jurisdiction.  The  14th  section  of  the  ju- 
diciary act,  so  far  as  it  has  relation  to  this  case,  is  in  these 
words  :  All  the  before  mentioned  courts  (of  which  this  is  one} 
of  the  United  States  shall  have  power  to  issue  writs  of  scire 
facias^  and  habeas  corpus^  and  all  other  writs  not  specially 
provided  for  by  statute,  which  may  be  necessary  for  the  ex- 
ercise of  their  respective  jurisdictions,  and  agreeable  to  the 
principles  and  usages  of  law."  "  If  the  power  to  issue  the 
v;rits  of  scire  facias  and  habeas  corpus,  be  not  restricted  to 


Law  Miscellanies.  341 

ihe  cases  within  the  crimi7ial  or  appellate  jurisdiction  of  this 
court,  the  case  of  Marbunj  and  Madison^  rejects  the  clause 
as  unavailing;  and  if  it  relate  only  to  cases  within  their  ju- 
risdiction, it  does  not  extend  to  the  case  which  is  now  moved 
for." 

Doubtless  the  judge  has  the  court  here  in  a  dilemma ; 
but  was  it  fair  to  talk  of  Marbury  and  Madison,  when  he 
had  professed  a  disembarrassment  of  the  question  from  Ihe 
effect  of  precedent. 

But  again,  he  says,  "  on  considering  this  act  it  cannot  be 
denied,  that  if  it  vests  any  power  at  all,  it  is  an  original  pow- 
er. It  is  the  essential  criterion  of  appellate  jurisdiction, 
that  it  reserves  and  corrects  the  proceedings  in  a  cause  al- 
ready instituted.  I  quote,  says  he  the  very  M'ords  of  the 
court  in  the  case  of  Marbury  v.  Madison." 

I  perceive  that  through  the  whole  of  the  opinion  he  em- 
barrasses himself  with  the  case  of  Marbury  and  Madison  ; 
and  the  argument  is,  in  some  degree,  ad  hominem,  that  is  • 
to  the  court  who  had  so  decided  in  that  case.  But  I  wish  to 
treat  them  fairly,  and  to  take  no  advantage  of  what  they  had 
decided  in  that  case,  but  to  see  what  they  ought  to  decide  in 
this.     I  turn  to  the  constitution,  and  the  judiciary  act  itself. 

Having  done  so,  I  look  at  the  opinion  of  the  court  as  dc- 
.livered  by  chief  justice  Marshall ;  and  I  find  it  correct, 
throwing  Marbury  v.  Madison  out  of  the  waj",  which  he  dis- 
tinguishes from  the  case  before  him^  with  some  astutia  affect- 
ing to  consider  it  as  the  case  of  an  appeal.  It  is  not  on  that 
ground,  I  would  put  it,  but  consider  the  court  as  having  pow- 
€r  under  the  act  of  congress,  to  issue  a  habeas  corpus  in  the 
first  instance.  The  clause  is,  "that  either  of  the  justices  of 
the  supreme  court,  as  well  as  judges  of  the  district  courts, 
shall  have  power  to  grant  writs  of  habeas  corpus  for  the  pur- 
pose of  an  enquiry  into  the  cause  of  commitment."  The  pow- 
er is  concurrent,  with  judges  of  the  district  courts  ;  and  not 
being  given  to  these  exclusively  in  the  first  instance,  the 
judges  of  the  supreme  court,  either  of  them,  or  a  fortiore, 
the  whole  of  them  sitting  in  bank,  have  original  jurisdic- 
tion in  this  case.    For  if  they  have  concurrently  jurisdiction, 


342  Law  Miscj:llamj,s. 

they  have  original.  For  the  constitution  givingthe  supreme 
court  ori^'-i;w/,  in  some,  and  appellate  in  all,  does  not  exclude 
the  power  of  congress  to  give  original,  where  it  must  be  ap- 
pellate. 

But  the  fact  is,  that  the  issuing  the  writ  of  habeas  corpus^ 
being  but  incidental  to  the  jurisdiction  as  to  trial^  it  does 
not  come  in  view  as  to  jurisdiction^  either  in  the  meaning 
of  the  constitution  or  of  the  act  of  congress.  It  is  collateral^ 
and  sideway  to  the  jurisdiction,  v/hether  original  or  appel- 
late. A  justice  of  the  peace,  or  a  judge  of  the  court  of  com- 
mon pleas  or  in  his  capacity  of  a  justice  of  the  pleas,  may 
commit  or  bail  for  offences  not  triable  before  the  justice,  or 
before  the  common  pleas.  Justice  of  the  peace,  or  other  magis- 
trate of  any  of  the  United  States,  for  any  crime,  or  offence, 
against  the  United  States  may  arrest,  imprison,  or  bail.  And 
even  where  "  a  person  is  committed  by  a  justice  of  the  su- 
preme, or  a  judge  of  a  district  court,  for  an  offence  not  pu- 
nishable with  death,  if  there  be  no  judge  of  the  United 
States  in  the  district  to  take  the  same,  it  may  be  taken  by 
any  judge  of  the  supreme,  or  superior  court  of  law  of  such 
state.''  Judiciary  act,  sec.  33.  Yet  these  judges,  or  courts 
could  not  take  jurisdiction  of  the  offence,  to  try  it.  It  fol- 
lows necessarily  from  the  provision,  that  each  of  these  autho- 
,rities  must  issue  the  habeas  corpus,  ad  inquirendum,  or  to 
see  whether  the  facts  alleged  amount  to  capital^  Lefore 
they  can  say,  whether  their  power  is  precluded  from  a  libe- 
ration. 

I  am  therefore  obliged  to  be  with  the  majority  of  the 
court,  and  to  say,  that  the  habeas  corpus  ought  to  have  issu- 
ed. 


Craudson and oiheis,  V. Leonard.  4  Cranch,  434.     - 

THIS  case  involved  the  doctrine  of  the  conclusiveness  of 
"'  the  sentence  of  a  foreign  court  of  admiralty.''^  It  had  not 
bi:fore  hicanyc  necessarii  in  any* case  to  decide  it;  though  it 


LA^V  MiSCELLANILS.  343 

had  been  argued  in  the  case  of  Fitzimmons  v.  the  Newport 
Insurance  company.  It  was  decided  in  favour  of  the  con- 
clmiveness  of  the  sentence,  by  four  judges,  Marshal,  Gush- 
ing, Washington  and  Johnston,  justices.  Chase  and  Living- 
ston o^mew^zw^ ;  Todd  not  being  present  at  the  argument 
gave  no  opinion.  The  weight  of  a  decision  is  proportion- 
ably  shaken  by  a  want  of  xmanimiiy.  The  doctrine  had  be- 
gun to  be  shaken  in  the  English  courts  in  the  case  of  Lothian 
V.  Henderson,  3  Bos.  and  Pull.  499,  Graham,  B.  dissenting 
from  the  majority  of  the  court  in  a  very  able  tirgument 
against  the  conclusiveness  of  the  sentence. 

The  bar  would  never  seem  to  have  acquiesced  perfectly. 
2  East,  476.  it  is  said,  the  counsel  were  proceeding  to  con- 
tend that  the  sentence  of  condemnation^  admitting  it  to  be  pro- 
nounced by  a  competent  tribunal,  was  not  conclusive  as  to 
the  question  of  neutrality,  which  was  collateral  to  the  ques- 
tion of  prize  or  no  prize.  But  the  court  said  "  that  after 
th'e  repeated  determinations  to  the  contrary,  it  would  be 
nugatory  to  open  that  discussion  again."  The  question  is, 
said  Lawrence,  whether  this  sentence  of  condemnation  be  con- 
clusive evidence  that  the  property  insured  was  British,  and 
consequently  that  the  vrarranty  of  its  being  neutral  was  not 
complied  with.  The  argimient  was  attempted  to  be  carried 
into  a  wider  field  than  we  think  it  fit  now  to  enter  into,  sir.ce 
the  case  of  Hughes  v.  Cornelius,  and  a  long  string  of  autho- 
rities which  have  followed  that  decision.  We  must  now 
therefore  take  it  for  granted,  that,  if  this  sentence  were  given 
by  a  court  of  competent  jurisdiction,  it  is  conclusive  upon 
the  point  then  in  judgment."  Thus  it  may  be  seen  that  the 
stare  decisis^  not  principle^  was  that  which  governed. 

And  5  East,  160.  it  is  said  by  lord  Plllenborough,  that, 
"since  the  judgment  of  the  house  of  lords  in  Lothian  v. 
Henderson,  it  may  now  be  assumed  as  the  settled  doctrine 
of  a  court  of  English  laiu^  that  all  sentences  of  foreign  courts 
of  competent  jurisdiciion  to  decide  questions  of  prize,  are 
to  be  received  here,  as  conclusive  evidence  in  actions  upon 
policies  of  Insurance,  upon  every  subject  immediately  and 
properly  ^vithin  the  jurisdiction  of  such  foreign  courts,  :ind 
upon  which  they,  have  professed  to  decide  judicially." 


344  Law  Miscellanies. 

I  do  not  wonder  at  Eriglisli  courts  holding  this  doctrine  j 
because  having  the  command  of  the  sea,  and  capturing,  whe- 
ther justly,  or  unjustly,  I  do  not  say,  more  than  other  na- 
tions, they  have  more  captures  to  bring  to  market,  and 
therefore,  it  suits  them  that  such  doctrine,  should  prevail, 
inasmuch  as  it  would  lessen  the  value  of  their  prizes,  at  an 
admiralty  sale,  if  there  could  be  a  doubt  of  being  able  to 
give  a  title.  Yet  their  judges  say  very  little,  or  rather  no- 
thing on  the  reason  of  the  principle,  but  shelter  themselves 
under  the  authority  of  lords,  &c. 

1  Camp.  418.  in  the  case  of  Fisher  v.  Ogle,  lord  EUenbo- 
rough  observed,  with  the  concurrence  of  the  other  judges, 
*'  It  is  by  an  overstrained  comity  that  these  sentences  are  re- 
ceived as  exclusive  evidence  of  the  facts  which  they  posi- 
tively aver,  and  upon  which  they  specifically  profess  to  be 
founded.'*  And  again,  1  Camp.  429.  "  I  am  by  no  means 
disposed  to  extend  the  comity  which  has  been  shown  to 
these  sentences  of  foreign  admiralty  courts.  I  shall  die  like 
lord  Thurlow  in  the  belief,  that  they  ought  never  to  have  been 
admitted.  The  doctrine  in  their  favour,  rests  upon  an  autho- 
rity in  Shower  (Hughes  v.  Cornelius,  2  Showb  232)  which 
does  not  fully  support  it,  and  the  practice  of  receiving  them, 
often  leads  in  its  consequences,  to  the  greatest  injustice." 

This  doctrine  of  conclusiveness^  had  been  adopted  impli- 
citly from  the  English  courts,  in  all,  or  most  of  the  states, 
before  and  since  the  revolution,  without  the  least  examina- 
tion of  the  principle. 

O  imitatores  ;  servum  pecus — 
There  was  some  reason  for  it  before  the  revolution,  be- 
cause, it  hold  a  doctrine  that  suited  the  then  colonies^  being 
part  of  the  British  empire,  and  sharing  with  her  in  this  buc- 
cancer  principle-,  so  as  finding  our  account  in  it.  But  how  it 
could  exist,  during  the  revolutionary  war,  and  since,  could 
have  been  only  from  a  defect  of  examination.  After  the  war 
and  during  our  situation  as  a  neutral  nation^  the  consequen- 
ces had  been  felt,  and  persons  insured,  had  begun  to  cast 
themselves  about,  to  provide  against  the  rule,  by  special 
clauses  in   the  contract ;  such  as  -ivurrcnted  American ;    but 


Law  Miscellanies.  345 

the  proof  to  be  made  here.  There  cannot  be  a  stronger  evi- 
dence of  the  badness  of  the  rule^  than  the  necessity  of  except- 
ing it^  by  a  special  provision  in  the  contract^  to  the  contrary. 

This  doctrine  was  shaken  by  a  decision  in  the  New- 
York  state,  1805,  by  the  court  of  errors  and  appeals,  2 
Caines,  217.  And  the  courts  of  Pennsylvania,  although 
they  sometimes  appeared,  indirectly,  to  recognize  the  theory 
of  the  courts  of  England,  had  honestly  endeavored  to  escape 
from  the  practical  operation,  which  often  leads  (says  lord 
Ellenborough)  to  the  greatest  injustice,  until  they  were  in- 
volved in  the  necessity  of  giving  judgment  in  Dempsey's 
case.* 

*  In  this  case,  in  the  supreme  court,  I  was  confined  to  my 
chamber,  by  indisposition,  and  did  not  deliver  the  opinion  which 
I  had  drawn  up  ;  but  gave  it  to  the  public,  not  as  an  opinion  drawn 
up  to  be  delivered,  but  as  an  abstract  essay,  in  Poulson's  Adver- 
tiser of  January  6th,  1808,  and  not  with  my  name  ;  but  it  is  as  fol- 
lows : 
On  the  conclusiveness  of  a  sentence  of  a  foreign  Court  of  Admiralty. 

THE  effect  of  a  sentence  of  a  foreign  Court  of  Admiralty,  as 
between  the  assured  and  assurer,  where  there  has  been  a  warranty 
by  the  assured,  that  the  property  assured  was  neutral ;  but  where 
it  has  been  condemned  in  a  foreign  court  on  the  ground  of  being 
enemies  proficrtij^  is  the  question  proposed  to  be  examined. 

When  two  nations  are  at  war  between  themselves,  a  sense  of 
justice  will  induce  Ccxh  to  avoid  injuring  an  individual  who  is  not 
of  the  belligerent  nation;  or,  if  a  sense  of  justice  does  not  govern, 
^elf-preservation  will.  For  it  cannot  be  the  interest  of  either  to 
injure  an  individual,  lest  it  provoke  the  nation  to  which  that  indi- 
vidual belongs  ;  and  involve  it  in  a  war  with  that  power,  adding  to 
itself  another  enemy  ;  and  drawing  on  itself  the  enmity  of  the  whole 
community  of  nations,  who  will  see  its  own  danger  in  the  exam- 
ple. For  this  reason  it  becomes  the  policy  of  each,  to  take  every 
precaution  against  an  injvu-y  to  a\i  individual ;  and  while  each  is 
committing  depredations  on  its  adversary,  to  have  some  power 
subordinate  of  tiie  particular  government  of  each  country,  to  take 
cognizance  of  prize,  and  confine  this  to  the  property  of  the  enemy  ; 
and  to  which  aiUhority  an  individual  who  thinks  himself  injured 
may  apply  ;  and  hence  the  institution  of  Courts  of  Commission- 
ers,  or  the  giving  power  to   Admiralty  or   othrr  Courts^  for  the 

X  X 


o46  Law  Miscellanies. 

I  had  an  opportunity  afterwards  at  March  term,  1808, 
in  the  case  of  Calhoon  v.  Insurance  Company  of  Pennsylva- 
vania,  to  express  my  sentiments  upon  this  point  comings  in- 
cidentally in  question ;  and  this  the  more,  because  I  fore- 
purpose  of  cxaniming  in  cases  of  injury.  It  must  l.c  incident 
to  such  authority,  to  order  restitution  of  ths  specific  properly, 
with  damages ;  or  condemn  as  enemies  properly,  and  decree 
a  sale  on  behalf  of  the  government,  and  for  the  use  of  those 
concerned.  The  sale  is  made  as  of  property  which  has  be- 
come the  prize  of  tiie  nation,  by  the  hands  of  her  sub- 
jects^ and  the  nation  is  interested  in  protecting  the  purchasers. 
Because,  othcrv.  ise,  there  would  be  no  purchasers,  or  the  prize 
would  not  bring  its  value.  The  specific  property  sold  in  the  mar- 
ket of  the  foreign  Court,  must  be  protected,  and  immunity  at  the 
same  time  must  be  secured  to  the  purchasers  from  any  suit  or 
prosecution  in  any  forum,  for  the  asportation  of  the  property. 
What  has  the  nation  of  the  captor  to  do  with  the  matter  any  far- 
ther ?  Where  the  property  of  a  neutral  nation  is  taken,  why  shall 
the  neutral  nation  regard  the  change  of  possession,  by  the  adjudi- 
cation, and  sale  of  the  belligerent  nation,  and  be  restrained  from 
recaption,  by  an  act  of  the  government,  or  the  right  of  reprisal  ex- 
ercised by  the  act  of  the  injured  individual  ?  Because  it  may  be 
the  immediate  cause  of  war  with  the  nation  to  whom  the  purcha- 
ser belongs,  cr  with  the  nation  who  made  the  sale,  and  is  mteresl- 
ed  in  making  good  the  transfer.  It  is  therefore  more  her  interest 
to  admit  the  conclusiveness  of  the  sentence,  and  the  validity  of 
the  transfer,  and  to  put  the  matter  into  a  train  of  investigation  witii 
the  capturing  government.  Or  she  may  also  be  a  capturing  na- 
tion in  /iir  turn y 'and  have  property  at  market  under  the  same  pre- 
dicament. It  is  the  public  policy  of  the  neutral  nation  therefore, 
that  the  sentence  of  the  foreign  Court  be  considered  as  conclusive 
on  the  iuhjact  of  the  cajiture^  so  far  as  respects  the  vdldity  of  the 
transfer-,  and  that  the  firoceeding  in  rem  shall  be  supported  ;  and  that 
no  collateral  suit  shall  be  sustained  betAveen  the  foreign  owner 
and  the  late  purchaser  which  shall  bring  the  jurisdiction  of  the  fo- 
rum, or  tlie  regularity  and  justice  of  the  judgment  in  question. 
But  as  respects  contracts,  which,  though  they  may  involve  the 
question  of  neo.tral  property,  yet  do  not  tend  to  nullify  or  defeat  the 
judgment,  by  affecting  those  who  hold  under  it,  it  is  wide  of  the 
national  concern,  and  a  matter  of  profit  or  loss  between  thos'.'  who 
pay  a  premium,  and  those  a\  ho  take  a  v'vAi  upon  it. 


Law  Miscellanies.  o47 

r,a\v  from  the  arrangement  of  the  courts,  that  I  could  not  be 
present  in  the  courts  of  errors  and  appeals,  to  which  the  case 
of  Dempsev  had  been  removed;  and  wished  my  sentiments 
to  be  known,  that  I  might  not  be  supposed  to  have  concur- 

Let  us  examine,  whether  from  the  nature  of  the  contract,  the 
foreign  judgment  can  at  all  affect  it.  It  is  on  the  name  lioint,  but 
is  it  between  the  same  parties,  or  those  claiming  under  them  :' 
Tills  is  iicccssary  to  enable  a  judgment  of  any  Court  to  be  given 
in  evidence  in  any  case.  The  Chief  Justice  of  the  King's  Bench 
(Mansfield)  assumes  this  as  a  principle  clear  and  admitted.  "  All 
tlie  world  are  parties  to  a  sentence  of  a  Court  of  Admiralty."  But 
tlie  Lord  Chancellor,  (Eldon)  expressing  himself  to  have  the  con- 
currence of  the  present  Chief  Justice  of  the  King's  Bench,  (Eilen- 
borough)  entertained  a  different  idea  on  this  particular.  His 
words  arc,  "  that  notion  I  apprehend,  and  am  informed,  is  a  mis- 
taken notion,  and  that  the  assured  on  a  policy  of  assurance  could 
not  be  admitted  parties  to  the  proceedings  in  a  Court  of  Admir 
rally." — 3  Bosan.  and  Pull.  5  45. 

But  suppose  all  persons  who  may  conceive  themselves  to  be 
affected  hare  a  right,  and  have  notice  actual  or  constructive,  to 
'•ome  in  and  make  themselves  parties  to  the  proceccUngs  in  a 
Court  of  Admiralty ;  let  us  examine  from  the  nature  of  the  con- 
'ract  of  insurance,  what  must  be  the  understanding  of  the  parties, 
with  respect  to  defending  the  claim  of  neutrality  before  an  Admi- 
'  alty  Court,  or  with  respect  to  the  effect  of  the  sentence.  For  what 
is  th#  premium  paid,  but  for  the  risk  of  capture,  and  the  effect  of 
ihat  capture  ?  You,  the  assurer,  undertaking  that  the  properly  is 
neutral ;  I,  the  underwriter,  undertake  that  it  shall  not  be  captured. 
But  it  has  been  captured  and  condemned,  therefore  it  was  not  neutral. 
The  underwriter  plays  a  saving  game  in  this  case.  On  capture,  the 
right  of  abandonment  arises,  and  the  right  of  action  accrues,  to  the 
assured  ;  the  underwriter  pays  the  value,  but  on  acquittal,  takes  the 
property  ;  on  condemnation,  he  pockets  the  premium,  and  pays  no- 
thing. Put  this  matter  to  mercantile  men,  and  tliey  will  acknowledge 
that  it  is  absurd,  and  what  they  had  no  idea  of  in  the  contract  o^inni:- 
ra7ice  ;  nor  can  they  comprehend  the  mystery  of  the  conclusive- 
ness of  a  foreign  sentence,  on  a  stipulation  which  pre-supposed  in 
the  rery  nature  of  it,  the  possibility  of  an  unjust  condemnation. 
The  consequences  of  the  doctrine  must  shew  the  inconsistency  with 
i!ic  nature  of  the  contract,  and  what  is  contemplated  under  it.  It 
•  ;.tu  only  be  in  the  case  of  capture  and  acriuittal,  that  tlic  assure^ 


348  Law  Miscellanies. 

red  in  sentiment,  though  not  upon  the  bench,  wijh  the  supreme 
court,  in  that  case. 

July  29th,  1808,  in  the  court  of  errors  and  appeals,  judge 
Cooper,  delivered  his  opinion  sinct  published,   which  exhi- 

has  any  right  of  aclio!i  ;  and  this  right  may  be  divested  by  the 
condemnation  ;  and  if  an  action  has  been  instituted,  it  must  be  dis- 
continued at  the  costs  of  the  plaintiff';  or  if  the  money  has  been 
recovered,  it  must  be  paid  back,  with  the  costs  of  recovery.  All 
these  inconsistencies  appeared  to  the  Judges,  in  the  case  of  Lothian 
and  others,  vs.  Henderson  and  others,  and  they  could  get  over  them 
only  with  the  unsatisfactory  reconcilement,  that  the  principle  had 
been  established- — 3  Bosan.  and  Pull.   499. 

The  leading  case  is,  that  of  Hughes  vs.  Cornelius ;  Sk.  5'9  ; 
2  Show.  232 ;  and  Tho.  Ray.  473.  We  have  the  special  ver- 
dict in  Shower,  which  shews  it  to  be  an  action  by  the  owner  of  a 
ship  against  the  vendor,  under  a  sentence  of  the  Court  of  Admiral- 
ty in  France  ;  wliich  sentence,  though  falsified  by  the  facts  found 
by  the  special  verdict,  was  held  to  be  conclusive  ;  and  the  proper- 
ty thereby  altered,  though  the  sentence  be  unjust.  This  carries 
the  doctrine  no  farther  than  we  are  willing  to  allow,  and  the  rea- 
son given  would  be  conclusive  with  us ;  which  was,  that  though 
it  be  in  another  King's  dominions,  we  ought  to  give  credit  to  it,  lest 
they  may  not  give  credit  to  our  Courts  of  Admiralty.  This  case 
was  decided  in  the  34  Ch.  2,  the  year  subsequent  to  our  charter, 
but  on  that  circumstance  I  lay  no  stress  ;  for  a  decision  before  the 
charter  can  be  no  more  than  evidence  of  what  the  law  was  b^ore, 
and  a  decision  since,  cannot  be  less.  But  a  great  ground  ot  the 
common  law  is  reason,  and  every  principle  is  examinable  by  rea- 
son.— Now,  the  reason  given,  does  not  bear  it  out  farther  than  the 
protecting  the  sale  by  the  order  of  the  Court  of  Admiralty.  But 
it  is  no  vuicommon  thing,  to  have  the  doctrine  carried  beyond  the 
principle.  Hence  the  perversions  of  the  common  law,  by  the  de- 
cisions of  Judges.  The  superstructure  overjuts  the  base,  by  the 
misconceptions  of  narrow,  or  through  the  oversight  of  great  minds. 

A  case  is  referred  to  in  the  books,  2  Ray.  893.  That  was  on 
a  bond  with  condition  that  if  the  defendant  should  answer  the  va- 
lue touching  such  a  ship  and  goods,  and  in  case  the  law  should 
adjudge  the  said  sjiip  and  goods  to  be  prize  ;  ])lea  that  the  law  did  not 
adjndge  the  ship  and  goods  to  be  pi-ize  ;  replication  that  the  French 
Admiralty  court  did  afijudgc  ;  demurrer;  judgment.  And  justly, 
because  the  circumstance  of  non-condemnation  was  the  conditiori  of 


Law  Miscellanies.  349 

bits  the  utmost  comprehension  of  mind ^  which  is  the  character- 
istic of  a  great  judge  ;  and  is  the  finest  specimen  of  legal  rea- 
soning, that  ever  fell  from  a  bench.  Keveriheless,  it  was  rul- 
ed contrar}',  the  supreme  court  of  the  United  States,  having 

the  bond.  The  condemnation  was  conclusive  by  the  nature  of  the 
contract.  This  gives  no  countenance  to  the  doctrine  of  conclusive^ 
ness  on  the  abstract  ftrinci/de. 

From  all  that  can  be  found  in  the  books,  at  least  from  my  read- 
ing, nothing  appears  to  sanction  the  idea  of  carrying  the  doctrine 
of  conclusiveness  farther  than  the  proceeding  in  rcm^  until  Ave 
come  to  the  great  case  of  Bernardi  and  Matteaux  in  the  year  '81, 
and  to  the  decision  in  Avhich,  though  even  since  the  declaration  of 
our  independence,  I  pay  just  as  much  respect  as  if  it  had  been 
before  the  charter  of  Char.  2  ;  and  that  is  nothing,  farther  than 
reason  will  support. — The  decision  of  a  Court  is  but  the  reason  of 
a  Court,  and  no  prescriptive  length  of  time  will  bar  the  reason  of 
another ;  opinion,  hoAvever  old,  is  but  matter  of  weight,  not  con^ 
troul,  and  respect  and  servility  are  distinct  things. 

It  is  but  by  implication  that  the  doctrine  would  seem  to  have 
been  carried  farther  in  this  case.  For  though  the  case  involved  the 
principle,  yet  it  was  put  on  the  ground  of  being  out  of  it ;  that  the 
sentence  had  not  proceeded  on  the  ground  expressly  of  the  pro- 
perty not  being  neutral ;  that  it  did  not  appear  from  the  sentence 
that  the  ship  and  cargo  were  condemned  as  enemies  property. 
The  warranty  on  the  part  of  the  assured  was  that  of  neutral  sliip 
and  neuti'al  property  ;  and  it  would  have  been  competent  to  him  to 
have  produced  the  sentence  as  conclusive  evidence  of  the  loss, 
had  there  been  a  necessity  for  him  to  have  gone  beyond  the  cap- 
ture, to  prove  the  loss  total.  But  for  the  assurer  to  produce  it,  to 
excuse  himself  from  payment  of  the  loss,  could  not  be  compe- 
tent, because  it  would  be  irrelevant,  and  could  prove  nothing  for 
him,  to  support  his  defence.  It  was  an  effect  of  the  capture  a- 
gainst  which  he  had  insured,  and  could  not  serve  his  defence ;  or 
even  if  it  were  relevant,  it  could  not  be  competent,  because 
it  was  res  inter  alias  acta^  and  the  assured  was  no  party  to  the  sen- 
tence. Is  it  thought  of  giving  notice  to  the  assured  to  make  good 
liis  warranty,  on  the  trial  before  the  Admiralty  Court ;  or  does  he 
in  fact  consider  himself  as  bound  to  take  notice  of  it.  He  abandons 
to  the  underwriter  the  possession  and  management  of  the  property. 
His  understaiKiing  is.  that  it  will  be  sufficient  for  Jnm,  to  make  eood 


^0.01  Law  MiscELiwANits. 

before  this  time,  Feb.  1808,  in  the  case  before  us,  decided  iii 
favour,  of  the  condusivenesfi  oj  foreign  sentences.  It  may 
be  presumed  that  it  was  for  the  sake  of  uniformity,  between 
the  state  court,  and  that  court  in  their  decisions,  that  it  was 

Ms  Avarranty  before  a  Court  and  Jury  of  his  country,  if  defence 
should  be  set  up  on  this  ground,  when  he  comes  to  pursue  his  po- 
licy. 

The  c:-mpetency  of  the  Admiralty  sentence  was  conceded  in 
the  argument,  from  an  oversight  I  take  it,  and  no  point  made  on 
this  gromid.  It  seems  to  have  been  conceded  even  that  it  was 
ronclusive  for  him,  provided  the  sentence  had  gone  expressly  on 
the  poi4it  of  not  being  neutral  property. — The  attention  of  the 
court  Avas  not  called  to  consider  on  which  side  the  sentence  was 
produced.  Or  as  Lord  Eldon  says,  in  the  case  of  Lothian  and 
Henderson,  "  The  practice  of  receiving  those  sentences  as  con- 
rlusive  evidence  for  collateral  purposes,  and  not  merely  in  suits 
l)ctween,the  identical  parties  in  the  foreign  courts,  may  possibly 
have  first  obtained  in  those  cases  where  the  PlaintiiT  himself  pro- 
duced the  sentence  in  order  to  prove  the  loss  !  • 

The  Admiraity  sentence,  as  to  whatever  it  meant  to  decide, 
says  the  Chief  Justice,  (Mansfield)  we  must  take  it  as  conclusive, 
and  bottoms  this  on  the  reason  which  he  had  before  given  "  that 
all  tiie  world  are  parties  to  a  sentence  of  a  Court  of  Admiralty," 
-—But  the  reason  failing,  the  law  fails.  But  the  principal  point 
not  bein^  made  in  the  argument,  the  decision  must  have  less 
weight.  Li  this  case  we  first  observe  the  struggle  of  a  sense  of 
justice  with  the  doctrine,  and  a  disposition  to  lay  hold  of  what, 
will  take  the  case  out  of  the  general  principle.  This  is  accom- 
plished fiv.ally  by  putting  it  on  the  ground  of  the  ambiguity  of  the 
sentence.  Lord  Mansfield  said  "  he  thought  the  justice  of  the  case 
might  be  got  at,  on  the  ground  of  the  ambiguity  of  the  sentence." 
This  is  the  commencement  of  the  doctrine  which  has  been  since 
adopted,  that  ambiguity,  obscurity,  injustice  or  contradiction  on 
the  face  of  the  sentence,  kc.  would  exclude  the  conclusiveness, 
and  the  Courts  have  discovered  an  astutia  on  all  occasions,  to  take 
the  case  before  them  out  of  the  general  /iiHtTci/ilc.—lL  his  was  fore- 
seen by  Lee  in  his  argument,  "  urging  the  danger  of  opening  the 
sentences  of  foreign  Courts  of  Admiralty,  Avhich  are  usually  infor- 
uial,  and  expressing  his  apprehensions,  that  the  consequence  of 
ti'.is  determination  would  be,  that,  in  all  cn.scs  of  this  sort,  ther.^ 


Law  Miscellanies.  3.J1 

so  ruled  b)'  the  court  of  errors  and  appeals.  I  take  the  li- 
berty of  saying  that  if  lord  EUenboi-ough's  dicta  and  judge 
Cooper's  opinion  had  appeared,  before  the  decision  of  the 
supreme  court  of  the  United  States,  it  might  have  changed 

would  be  coritroversies  about  the  ground  of  the  foreign  sentence." 
On  tills  Lord  Mansfield  said,  "  that  this  supposed  inconvenience, 
would  be  entirely  obviated,  if  the  foreign  Courts  would  say,  in 
their  sentences,  condemned  as  enemies profxerty.'''' 

But  not  having  it  in  his  pov.'er  to  command  this  correctness  in 
the  sentences  of  the  foreign  courts,  it  was  an  inconvenience  which 
it  was  not  in  his  power  to  obviate ;  it  is  ratlier  curious  that  he 
should  expect  the  Couvts  cf  Admiralty  of  the  powers  at  war  with 
Great  Britain,  so  to  amend  their  sentences,  as  to  excuse  English 
underwriters  from  paying  losses — they  would  be  careful  not  to 
take  the  hint. 

Mayne  vs.  Walter,  22  Geo.  3,  it  was  ruled  by  the  same 
Chief  Justice  (Mansfield)  if  the  ground  of  the  decision  appeared  to 
be  a  foreign  ordinance  manifestly  unjust,  and  contrary  to  the  I2.WS 
of  nations  and  the  insured  has  only  infringed  such  a  partial  law, 
that,  shall  not  be  deemed  a  breach  of  his  warranty  so  as  to  dis- 
charge the  insurer.  In  that  of  Salucci  vs.  Johnston,  25  Geo.  3, 
it  was  ruled  that  though  the  vessel  be  condemned  as  prize,  yet  if 
the  grounds  cf  tlie  sentence  appear  manifestly  to  contradict  such 
a  conclusion,  the  court  here  will  not  discharge  the  underwriters 
by  declaring  that  the  insured  has  forfeited  his  neutrality.-^Cal- 
vert  vs.  Bovat,  S8  Geo.  3,  in  the  opinion  of  the  Chief  Justice  (Ken- 
V  on)  "  the  justice  and  honesty  of  the  case  was  with  the  Plaintiff  be- 
yond all  doubt,"  but  it  is  contended,  the  sentence  of  condemna- 
tion precludes  the  plaintiff  from  asserting  that  fact.  I  yield  to  tlve 
rases  cited,  says  he,  "  which  shews  that  to  a  certain  degree  this 
court  will  support  the  proceedings  in  Foreign  Courts,  by  presuming- 
that  their  sentences  are  just;  and  will  not  make  any  excejjtion  at 
present  of  the  proceedings  of  the  French  Courts  of  Admiralty.  But 
when  an  attempt  is  made  to  pervert  the  justice  of  the  case,  it  br- 
eomes  necessary  lor  us  to  see  vvhether  the  decision  of  the  Court 
at  Guadaloupe,  has  so  determined  on  the  fact  (;f  neutrality  that  we 
cannot  examine  into  it." 

Gcycr  vs.  Aquilar,  38  Geo.  3.  I'iic  Cliicf  Justice  (Kenyon, 
«»  when  tills  cahc  was  argued  in  the  last  term,  the  parties  desired 
in  Lave  a  sccoui'i  arf^uni?nt :  to  tills  the  covnl  readilv  accdr-d  fT-oni 


'2  Law  Miscellanies. 

ri  vote,  and  in  that  ca^e,  we  should  have  had  no  such  princi- 
ple to  disgrace  our  code. 

So  far  as  respects  our  state,  it  was  abolished  by  the  legis- 
lature, by  an  act  of  29th  March,  1 809.  But  it  is  to  be  regretted 

an  anxious  -wish  that  it  might  produce  such  arguments  and  rea- 
sons as  would  enable  them  to  form  a  judicial  opinion  according  to 
their  individual  feeling.  The  situation  of  Judges  is  such  that  they 
are  some  times  obliged  to  decide  against  their  own  feelings  as  men. 
We  come  to  decide  this  case,  says  he,  bound  and  shackled  by  cer- 
tain rules  from  which  we  dare  not  depart.  Civilized  nations  con- 
fess to  be  governed  by  certain  rules,  and  the  comity  due  from 
courts  in  one  counti-y,  to  those  in  another,  induces  them  to  give  cre- 
dit to  one  another\  acts.  And  so  we  must  continue  to  act  in  this 
country  until  the  legislature  shall  think  Jit  to  forbid  it.  There  is 
the  same  comity  between  the  different  courts  in  this  country. 
Where  there  has  been  a  proceeding  in  the  exchequei',  and  a  judg- 
ment in  rem.,  as  long  as  the  judgment  remains  in  force,  it  is  obliga- 
tory on  the  parties  who  have  civil  rights  depending  on  the  same 
question.  Not  long  after  Lord  Mansfield.,  came  into  this  court, 
in  an  action  brought  against  the  officers  of  the  customs  or  excise, 
he  was  told  by  J.  Denison  that  as  the  question  had  already  been  de- 
cided in  the  exchequer  by  a  condemnation  of  the  goods  seized, 
the  judgment  of  that  court  was  conclusive  in  favour  of  the  defen- 
dant here  ;  at  first  Lord  Mansfield  doubted  the  propriety  of  that 
opinion,  but  on  enquiry  finding  that  Mr.  J.  Denison  was  right,  he 
acquiesced,  and  always  afterwards  acted  upon  it.  I  admit  the  cases  of 
Mayne  vs.  Walter  and  Salucci  vs.  Johnston  up  to  the  full  extent ;  I 
admit  that  if  a  foreign  court  of  admiralty  proceed  on  grounds  contra- 
ry to  the  law  of  nations,  their  judgment  ought  not  to  have  weight  in 
the  courts  of  this  country.  But  let  us  sec  what  this  case  is  :  The 
ground  on  which  the  courts  in  France  proceeded  was,  that  this 
was  a  captui'e  of  enemies  property;  audit  certainly  is  not  contra- 
ry to  the  law  of  nations  to  condemn  a  ship  on  that  ground.  Whc 
iher  or  not  those  courts  arrived  at  that  conclusion  by  proper  means, 
I  am  not  at  liberty  to  enquire  ;  here  tlie  question  is  whctlier  they 
liave  not  stated  as  the  ground  of  condemnation,  a  ground  wliich 
Avill  bear  them  out,  supposing  it  to  be  true  ?  And  I  am  clearly  sa- 
tisfied that  they  have.  They  concluded  from  the  evidence  that 
this  was  enemies  property,  not  indeed  in  the  formal  language  oi 
our  covuls  of  justice,  but  they  say  in  substance  "we  think  tills 
enemies   property  and  therefore  Me  condemn  the  ship  and  carf;o.' 


Law  Miscellanies.  353 

that  a  Judiciary  decision  had  not  the  credit  of  this  reform  in 
our  Jurisprudence.  I  mean  so  far  as  respected  the  state 
courts,  and  what  was  within  their  jurisdiction. 

Now  that  concludes  this  case  ;  for  as  long  as  the  foreign  judg- 
ments are  binding  upon  us,  the  conclusioii  we  must  draw  from 
the  judgment  in  this  case  in  France  is,  that  the  property  which 
\vas  warranted  to  be  American  is  found  by  that  judgment  not  to  be 
American  property.  I  feel  this  however  as  the  grossest  injustice 
to  Americans.  The  French  courts  seem  to  have  proceeded  in 
this  instance  on  Algtrine  (nay  on  worse)  principles  ;  because  they 
professed  to  proceed  according  to  law,  but  in  reality  made  the 
law  a  stalking  horse  for  an  act  of  piracy.  But  I  cannot  now 
question  the  legality  of  their  decision ;  I  am  bound  to  decide 
according  to  the  law ;  it  is  my  duty  jus  dicere  et  non  jus  dare." 

Ashurst,  in  this  case  :  "  Though  most  probably  we  should  not 
have  given  the  same  judgment  as  the  French  courts  gave,  it  is 
not  open  to  us  now  to  canvass  that  question. — As  the  French  courts 
have  already  given  a  judicial  opinion  upon  the  question,  it  must 
govern  us,  whatever  may  be  our  opinions  concerning  the  real  me- 
rits of  the  case." 

Groce,  Justice  ;  "  I  feel  myself  bound  to  give  judgment  in  fa- 
vour of  the  defendant,  and  at  the  same  time  lament  the  necessity  of 
so  deciding." 

Lawrence  J.  "  If  we  could  have  examined  the  grounds  on  which 
the  French  courts  determined  this  to  be  enemy's  property,  proba- 
bly we  should  have  formed  a  different  conclusion :  but  we  cannot 
review  those  judgments  here.  They  have  decided  the  question, 
though  by  no  means  according  to  my  opinion :  but  having  so  de- 
cided, the  rule  undoubtedly  is,  that  whenever  a  court  of  compe- 
tent jurisdiction  has  decided  any  question,  and  the  same  question 
arises  incidentally  in  another  court,  the  latter  is  concluded  by  th« 
former  judgment.  The  case  of  Hughes  v.  Cornelius  shews  that  this 
rule  was  not  confined  to  judgments  given  in  our  courts  ;  there,  in 
an  action  of  trover  for  a  ship  and  goods,  a  special  verdict  was 
found  setting  forth  a  sentence  in  the  court  of  admiralty  in  France, 
which  was  in  favour  of  the  defendant,  and  fier  curiam,  agreed  and 
adjudged  that  as  we  are  to  take  notice  of  a  sentence  of  a  court  of 
admiralty  here,  so  ouglit  we  of  those  abroad  by  other  nations,  and 
we  must  not  set  them  at  large,  again,  for  otherwise  the  merchants 
would  be  in  a  pleasant  condition  ;  for  suppose  a  decree  here  in  the 

Y  Y 


v354  Law  Miscellanies. 

exchequer,  and  the  goods  happened  to  be  carried  into  another  na- 
tion, should  the  courts  abroad  unravel  this  ?  It  is  but  agreeable 
with  the  law  of  nations,  that  we  should  take  notice  and  approve  of 
the  laws  of  their  countries  in  such  particulars."  "  According  to  all 
the  authorities  therefore  I  think  we  are  concluded  in  this  case  by 
the  judgments  given  in  France,  however  we  may  feel  the  impro- 
priety of  those  decisions." 

Here  we  have  Hughes  and  Cornelius,  and  the  reason  given  in 
that  case,  2  Show.  242  ;  "  suppose  a  decree  in  the  exchequer,  and 
the  goods  happen  to  be  carried  into  another  nation,  should  the 
courts  abroad  unravel  this  ?"  The  protecting  the  sales  of  proper- 
ty made  under  the  order  of  their  own  courts,  was  the  policy.  But 
could  not  that  be  done,  without  affecting  the  interests  of  persons 
M'ho  did  not  claim  under  the  sale  ?  There  is  no  more  reason  ia 
this  than  to  say  the  vendee  shall  not  recover  against  the  vendor  on 
eviction,  or  that  a  surety  whose  property  has  been  sold  under  a 
scire  facias  shall  not  recover  against  him,  for  whom  he  had  been 
surety,  lest  it  should  affect  the  sheriff's  sale.  We  also  again  hear 
of  comity  of  nations,  the  reason  given  in  the  same  case  as  reported 
by  Sir  Thomas  Raymond,  that  foreign  courts  will  not  regard  our 
sentences  if  we  do  not  regard  theirs.  But  do  foreign  courts  ex- 
ercise a  rociprocal  comity  ?  "  The  courts  of  France  (says  Martial 
in  his  treatise  on  the  law  of  insurance)  do  not  carry  their  complai- 
sance so  far.  The  judgments  of  foreign  tribunals  have  then,  no 
weight  or  authority  whatever  against  Frenchmen  ;  and  the  case 
must  be  again  decided  in  the  courts.  And  for  this  he  gives  the 
authority  of  Emerigon,  a  French  writer.  These  courts  do  not  even 
respect  a  sale  made  under  the  order  of  a  foreign  court ;  or  consider 
it  a  change  of  property  for  aught  that  appears  from  this  authority  ; 
nevertheless  the  British,  for  reasons  of  national  policy,  in  their  own 
favour,  which  it  is  not  necessary  for  us  to  examine,  carry  the  comi- 
ty on  their  part  to  the  extent  which  has  been  decided,  notwith- 
standing the  embarrassments  consequent  upon  the  doctrines  which 
have  laid  them  vinder  the  necessity  of  explaining  and  distinguish- ' 
ing  in  almost  every  case. 

Christie  vs.  Secritan,  39  Geo.  3.  The  Chief  Justice  (Kenyon) 
again  says  ;  "  in  general  there  is  no  doubt  but  that  the  sentence  of 
a  court  of  admiralty  is  conclusive  as  to  the  points  which  it  profess- 
es to  decide  ;  it  was  so  ruled  in  the  case  of  Hughes  vs.  Cornelius." 
But  he  finds  a  variance  between  the  warranty  and  the  sentence, 
and  on  that  lets  the  plaintiff  off  from  the  principle.- 


Law  Miscellanies.  355 

Groce,  J.  "  In  considering  that,  we  can  only  look  at  the  ground 
of  the  sentence  itself,  and  not  at  the  previous  reasons  which  are 
stated."  The  case  of  Bernardy  and  Matteaux,  the  Chief  Justice 
(Mansfield)  looked  at  the  reasons  in  the  process  verbal,  and  laid 
the  sentence  aside,  and  got  over  the  doctrine  in  that  manner,  hence 
the  observation  of  Martial,  290  ;  "  In  whjat  cases  such  sentences 
shall  be  deemed  conclusive  evidence  to  falsify,  or  prove  the  for- 
feiture of  the  warranty,  has  been  often  found  to  be  a  very  perplex- 
ing question,  and  has  produced  much  litigation  and  many  deci- 
sions, which  are  not  easily  reconciled,  or  reducible  to  any  well  de- 
fended principle." 

43  Geo.  3.  In  the  case  of  Lothian  and  others  vs.  Henderson 
and  others,  the  question  had  arisen  in  the  court  of  admiralty  "  in 
Scotland."  The  judge  admiral  decreed  "in  favour  of  the  under- 
writers ;"  which  by  implication  involves  the  conclusion  of  holding 
the  conclusiveness  of  the  foreign  sentence.  The  assured  brought 
the  merits  of  that  decree  before  the  court  of  session  by  an  action  of 
reduction  where  the  Lord  ordinary  pronounced  an  interlocutor  in 
favour  of  the  insured,  to  which  after  a  representation  for  the  ap- 
pellants he  adhered.  The  appellants,  the  underwriters,  having 
petitioned  the  whole  court  of  session  ;  that  court  unanimously  con- 
firmed the  interlocutor  of  the  Lord  ordinary  ;  whereupon  the  un- 
derwriters appealed  to  the  house  of  lords. 

We  have  now  the  sense  of  the  judicial  authority  of  Scotland 
against  the  conclusiveness  of  the  foreign  sentence ;  and  it  comes 
to  I'eceive  a  consideration  in  the  highest  judicial  authority  of  the 
British  government.  It  was  argued.  May  1803,  at  the  bar  of  the 
house  of  lords.  On  this  argument  tlie  coimsel  on  both  sides  not 
only  spoke  to  the  several  questions ;  but  also  argued  at  great 
length  and  with  much  learning,  say  the  reporters,  (3  Bosan.  and 
Pul.  505)  the  admissibility  in  evidence  of  a  sentence  of  a  foreign 
court  of  admiralty  in  an  action  upon  a  policy  of  insurance,  in  or- 
der to  falsify  a  warrant  of  neutrality. 

After  the  argument,  the  lord  chancellor,  put  the  question  to 
the  judges  involving  this  principle. 

11th  July,  1803,  the  opinions  of  the  judges  seriatim.  I  shajl 
notice  certain  dicta  in  the  opinions  of  some  of  them. 

Baron  Graham,  speaking  of  the  foreign  sentence  says,  "I  am 
relieved  from  the  necessity  of  saying  what  I  think  of  the  disgrace- 
ful sentence  ;  and  how  far  an  English  court  of  justice  is  bound  to 
adopt  their  conclusions,  when  directly  contrary  to  the  premises 
from  which  they  are  drawn.     To  receive  such  sentences  as  con- 


356  Law  Miscellanies. 

elusive,  would  be,  in  effect  to  say,  that  we  give  no  credit  tp  wli^at 
they  truly  state,  but  absolute  credit  to  what  they  falsely  conclude." 
Chambrc,  adverts  to  the  embarrassing  consequences  of  the 
doctrine ;    and  which   had  been  a  question  raised  in  that  case, 
"  whether  on  the  event  of  condemnation,  if  the  underwriters  had 
given  their  bills,  and  before  payment,  the  sentence  of  condemna- 
tion had  arrived,  they  could  legally  have  refused  payment  of  these 
bills ;  or  whether  if  the  money  had  been  actually  paid,  it  could  have 
been  recovered  back,  which,  taking  the  sentence  to  be  concl\isive, 
it  must  be  conclusive  to  all  purposes  whatever,  and  so  overturn 
every  fact  established  by  other  evidence.     If  so,  the  bills  would 
have  been  given  under  a  mistake  of  what  ultimately  turned  out  to 
be  really  the  fact,  and  then  the  consideration  upon  which  they  were 
given  would  have  failed  al  initio."     It  is  in  this  manner  he  would 
reconcile  the  doctrine  with  justice,  and  which  difficulty  the  opinion 
drew   along  with  it  which  he  adopts.     "  I  think,"  says  he,  "  the 
sentence  conclusive  against  the  claims  of  the  assured,  agreeable  to 
all  the  decisions  on  the  subject,  beginning  with  the  case  of  Hughes 
vs.  Cornelius,  (confirmed  as  that  was  by  the  opinion  of  Lord  Holt 
in  two  subsequent  cases),  and  pursuing  them  down  to  the  present 
period.     It  is  true  that  in  Hughes  vs.  Cornelius  the  question  upon 
the  foreign  sentence  arose  in  an  action  of  trover,  and  not  in  an  ac- 
tion on  a  policy  of  insurance  where  the  non-compliance  with  a 
warranty  of  neutrality  is  in  dispute.     But  from  that  period  to  the 
present,  the  doctrine  there  laid  down  respecting  foreign  sentences 
is  considered  equally  applicable  to  questions  of  warranty  in  actions 
on  policies,  as  to  questions  of  property  in  actions  of  trover.     It  has 
been  supposed  indeed,  that  the  cases  warrant  a  distinction  between 
those  sentences  which  expressly  take  into  consideration  and  ulti- 
mately decide  the  non-neutrality  of  the  ship,  and  those  in  which 
the  same  point  does  not  appear  to  have  come  so  immediately  un- 
der the  consideration  of  the  foreign  courts.    But  I  think  wherever 
the  courts  in  this  country  have  been  able  to  collect  from  the  sen- 
tence that  the  point  of  neutrality  has  been  decided,  they  have  held 
themselves  bound  by  that  decision.     Indeed  the  doctrine  upon  this 
subject  is  most  ably  summed  up  in  the  admirable  judgment  of  the 
master  of  the  rolls,  in  Kendersley  vs.  Chace.     Had    the  French 
sentence  in  this  case  merely  stated  the  French  ordinance,  without 
concluding  as  they  have  done,  this  case  might  have  fallen  within 
some  of  the  late  determinations  of  the  Court  of  King's  Bench.  But 
the  French  court  has  gone  further  in  their  determination,  and  ap- 
plying the  facts  and  the  orditunces,  they  have   di'awn  a  conclu- 


Law  Miscellanies.  •^ST 

slon  which  perhaps  no  court  in  this  country  would  have  done,  but 
by  which  they  have  decided  that  the  ship  Catherine  being  an  Ame- 
rican^ had  forfeited  her  neutrahty.  I  am  therefore  of  opii^ion 
that  the  assured  are  boiuid  by  this  decree  of  the  French  court. 

The  case  of  Hughes  and  Cornelius  is  still  the  leading  case,  in 
which  tJie  decision  was  originally  of  proper  extent,  but  like  bajl 
report,  the  doctrine  of  this  report  has  since  grown  to  a  monstrous 
size. 

Ingrediturque  solo  et  caput  inter  nubila  condit. 
Le  Blanc,  J.  in  this  case  says,  "  that,  these  sentences  are  ad- 
missible and  conclusive  evidence  of  what  they  undertake  to  de- 
cide, it  seems  not  no\.v  safe  to  question." 

The  doctrine  is  here  put  on  the  footing  of  precedent,  and  not 
on  the  ground  of  legal  reason  or  political  relation. 

Lawrence,  J.  discovers  himself  to  be  well  aware  of  another 
embarrassing  consequence  of  this  doctrine.  It  occurs  to  him  as 
it  did  to  Chambre,  that  on  the  capture,  the  ri^ht  of  abayidonment 
arises  ;  the  cause  of  action  accrues ;  but  is  liable  to  be  defeated, 
all  effect  of  it  divested  by  the  subsequent  sentence  of  condemna- 
tion. But  a  second  difficulty  occurs  to  find  out,  on  this  principle, 
what  it  is  against  nvhich  the  insured  insures,  if  it  be  not  the  effect 
of  the  capture,  and  wdiat  almost  necessarily  follows  it,  according 
to  the  acknowledged  practice  of  the  French  courts,  we  will  add 
British,  a  condemnation.  He  supposes  it  may  be  against  the  cap- 
ture, wherever  an  acquittal  follows  ;  because  the  voyage  might  be 
defeated,  and  the  assured  be  entitled  to  abandon,  and  call  on  the 
underwriter  as  for  a  total  loss. 

I  doubt  whether  it  ever  entered  into  the  head  of  an  insurer, 
that  it  was  only  in  the  case  of  a  capture,  where  an  acquittal  follow- 
ed, that  he  could  be  entitled  to  recover. 

Heath,  J,  says  nothing  of  the  conclusiveness  of  a  foreign  sen- 
tence, but  puts  the  case  before  him,  on  the  intention  of  the  parties. 
The  object  of  the  parties,  says  the  Judge,  "was  to  ascertain  the 
neuti'ality  of  the  ship,  in  case  of  capture  or  seizure,  by  the  medium 
of  such  proof  as  would  be  sufficient  in  the  case  of  a  loss,  by  the  pe- 
rils of  the  seas.  The  manifest  injustice  practised  by  the  French 
courts  of  prize,  at  the  date  of  this  agreement  was  so  public,  and 
notorious,  and  was  the  subject  of  so  many  suits  in  this  country,  that 
I  presume  we  may  judicially  take  notice  of  it.  If  so,  the  meaning 
of  the  agreement,  as  clearly  and  manifestly  may  be  collected  from 
the  terms  of  it,  was  to  indemnify  the  insured  against  the  iniquity 
of  these  sentences,  and  for  the  underwriters,  in  consideration  of 


358  Law  Miscellanies. 

the  high  premium  of  ten  guineas  per  cent,  to  take  tiiat  risk  on 
themselves  ;  for  this  was  a  high  war  premium." 

M'Donald,  Baron,  places  his  decision  on  the  special  circumstan- 
ces of  the  case  ;  "  but  with  respect,"  says  he,  "  to  the  effect  of 
those  unjust  sentences  of  the  foreign  tribunals,  although  I  might 
have  hesitated  in  concurring  with  some  of  the  cases,  it  is  now  too 
late  to  encourage  any  doubts,  as  they  have  been  acted  upon  to  a 
very  great  amount." 

Eldon,  Chancellor,  with  the  concurrence  of  Chief  Justice  El- 
lenborough,  stiites,  "  it  docs  not  become  me  to  impugn  a  practice 
acted  upon  for  so  long  a  series  of  years,  and  that  by  men  in  the  ju- 
dicial character,  who  must  ever  be  looked  up  to  with  reverence  in 
this  country.  I  well  know  also  how  much  property  has  been  af- 
fected by  this  principle  and  how  much  more  may  now  be  afloat  on 
the  faith  of  that  long  train  of  decisions  in  Westminster  hall,  by 
which  the  principle  in  question  has  been  sanctioned." 

Chief  justice  of  the  common  pleas,  (Alvanly)  "  after  the  long 
scries  of  cases  in  Westminster  hall,  in  which  foreign  sentences  have 
been  received  for  the  sam.e  purposes  for  which  the  French  sentence 
in  this,  is  now  set  up,  and  the  long  period  of  time  during  which 
ihosc  cases  have  been  acted  on  by  the  commercial  part  of  this 
counti-y,  and  acquiesced  in  by  the  legal  part  of  the  community,  I 
cannot  admit  that  it  is  still  open  to  this  house  to  decide  that  foreign 
.sentences  are  not  admissible  evidence  in  suits  between  the  assured 
and  the  underwriters,  in  order  to  falsify  the  warranty  of  neutrali- 
ty. Nor  do  I  feel  that  opinion  shaken  by  the  consideration,  that 
t!ic  point  has  never  yet  received  the  express  decision  of  this  house. 
At  this  late  period,  such  a  decision  upon  that  point  as  the  respond- 
ents now  contend  for,  might  almost  induce  the  merchants  of  Lon- 
don to  shut  the  door  of  Guildhall  against  the  judges." 

This  is  putting  it,  not  on  the  ground  of  reason,  but  the  fear  of 
merchants,  or  a  consideration  of  the  effect  of  unhinging  a  principle. 
Prizes  sold  under  the  orders  of  the  British  Admiralty  courts  where 
the  merchants  were  purchasers,  could  not  be  affected  carrying  the 
principle  no  fai'ther  than  it  originally  stood  in  the  case  of  Hughes 
and  Cornelius,  but  this  it  is  probable  was  in  his  mind  ;  or  if  he  look- 
ed only  to  the  consequence  of  some  adjudications  being  found  to 
have  gone  upon  a  wrong  principle,  the  merchants  might  complain, 
But  by  taking  this  distinction  on  the  proceeding  in  rem  and  carry- 
ing it  no  further  than  to  protect  the  sale,  the  jurisprudence  of  the 
country  would  have  been  less  embarrassed  than  it  now  is  in  this 
particular ;  nevertheless  common  sense  went  down  under  an  idea 


Law  Miscellanies.  359 

of  the  insuperable  difficulty.  An  early  oversight  has  become  law 
in  that  country,  and  reason  which  had  struggled  long  against  it  in 
the  breasts  of  counsel  and  the  heads  of  judges,  has  been  over- 
reached by  the  imperceptible  advances  of  original  error:  which 
has  grown  a  monster  in  jurisprudence,  and  like  usurpers  of  power 
in  the  governments  of  men,  it  maintains  itself  by  the  mischief  it 
has  done. 

Let  us  see  whether  it  has  got  such  a  footing  in  our  jurispru- 
dence here  by  the  decisions  of  our  courts. 

Vasse  vs.  Ball,  2  Dallas,  270,  at  March  term,  1797,  in  the  su- 
preme court,  would  seem  to  be  the  first  case,  where  the  point  was 
made.  The  counsel  for  the  plaintiff  say,  there  is  not  in  fact,  any 
judicial  determination  of  the  English  courts,  antecedent  to  the 
American  revolution,  which  declares  that  a  sentence  of  a  court  of 
admiralty  cannot  be  examined  and  controverted  between  persons 
who  are  not  parties  to  it.  It  is  not  alleged  on  the  part  of  the  de- 
fendant, that  there  had  been  any  other  than  English  precedents  to 
warrant  the  doctrine. 

Shippen,  J.  expresses  an  inclination  to  think  our  courts  bound 
by  the  foreign  sentence,  and  where  the  decree  proceeded  express- 
ly on  the  point. 

M'Kean,  chief  justice,  seems  to  have  confined  himself  to  the 
subject  of  the  condemnation.  "  The  idea,"  says  he  "  that  a 
sentence  of  a  courts  of  admiralty  is  conclusive,  arises  from  this  con- 
sideration, that  the  court  always  proceed  i?i  rein.  The  decree  na- 
turally and  necessarily  binds  the  subject  of  the  proceeding-,  a  ship, 
or  cargo ;  and  any  person  pvirchasing  under  the  decree  will,  of 
course,  be  secure.  But  this  case  was  not  determined  on  the  ge- 
neral principle. — It  is  true,  that  the  inclination  expressed  by  chief 
justice  Shippen,  and  the  weight  of  that  inclination  would  seem  to 
have  led  to  a  general  impression  out  of  doors,  that  the  doctrine  of 
the  English  Courts  would  be  adopted  ;  for  since  that  time,  and  be- 
fore, owing  to  the  English  decisions,  that  had  been  done,  which  the 
Chief  Justice  of  tlie  Common  Pleas,  in  Lolhian  and  Henderson, 
suggests.  *^  For,"  says  he,  "  it  being  once  known  that  such  is  the 
law  respecting  foreign  sentences,  those  who  do  not  choose  to  sub- 
ject themselves  to  the  caprice  of  a  French  Court,  may  stipulate  in 
the  policy  that  tb.e  evidence  of  a  Frencli  Court  shall  not  be  adu- 
ced  in  evidence  against  their  claim." 

Our  merchants  have  introduced  these  stipulations  in  their  po- 
licies, that  they  might  not  subject  themselves  to  the  caprice  of  Ei.g- 
lisij  Courts.     But  there  need    be  no  subjection  to  the  caprice  of 


360  Law  Miscellx\nies. 

either,  if  our  Courts  would  not  subject  themselves  to  Engiish  de- 
cisions on  a  general  principle,  where  error  hath  manifestly  inter- 
vened, and  which  the  very  precautions  of  the  stipulation  prove  to  be 
contrary  to  common  notions  of  convenience  or  justice. 

Taking  a  decision  to  amount  to  more  than  mere  evidence  of 
■what  the  law  is,  and  of  itself  to  be  a  ground  of  law,  or  to  constitute 
the  law,  it  has  been  shewn  tliat  at  least  it  is  not  a  clear  case,  that  the 
decision  in  Hughes  vs.  Cornelius,  went  farther  than  has  been  stat- 
ed ;  but  even  had  it  gone  farther ;  and,  that  to  the  extent  gone,  it 
was  to  be  considered  in  England  as  afirincifile  of  the  common  laiv, 
yet  might  it  not  be  a  question  whether  it  was  a  principle  of  that 
nature  which  in  our  colonization  we  would  cany  with  us.  For 
though  it  hath  been  held,  that  if  an  uninhabited  country  be  disco- 
vered and  planted  by  English  subjects,  all  the  English  laws  then 
in  being,  which  are  the  birth-right  of  every  subject,  are  immediate- 
ly there  in  force,  "  yet  this  must  be  understood"  says  Blackstone, 
^^  with  very  many  and  very  great  restriction?:  and  colonists  carry 
with  them  only  so  much  of  the  English  law  as  is  applicable  to  their 
own  situation,  and  the  condition  of  any  infant  colony  ;  such  for  in- 
stance as  the  general  rules  of  inheritance  and  of  protection  from 
personal  injuries.  The  arlljicial  refinements  and  distinctions  incident 
to  the  /irofierty  of  a  great  and  commercial  fieofile.,  are  neither  ne- 
cessary nor  convenient  for  them  and  therefore  are  not  in  force." 
But  the  obligation  of  the  English  laws  over  the  colonists  of  Penn- 
sylvania will  depend  upon  the  Charter  to  William  Penn,  which 
expressly  provided  as  to  this.  Sec.  7.  in  these  words  "  and  our  far- 
ther will  and  pleasure  is  that  the  laws  for  regulating  and  govern- 
ing of  property  within  the  said  province,  as  Avell  for  the  descent 
and  enjoyment  of  lands,  as  likewise  for  the  enjoyment  and  succes- 
sion of  goods  and  chatties,  and  likewise  as  to  all  felonies,  shall  be 
and  continue  the  same  as  they  shall  be  for  the  time  being  by  the  ge- 
neral course  of  the  laKV  in  our  kingdo7n  of  England^  until  the  said 
laws  shall  be  altered  by  tlie  said  William  Penn,  his  heirs  and  as- 
signs, and  by  the  freemen  of  the  said  province,  their  delegates  or 
deputies  cr  the  greater  part  of  them." 

Considering  that  by  this  clause,  authority  is  given  to  the  deci- 
sions of  English  courts  and  that  up  to  the  revolution,  they  were 
as  binding  in  this  state  as  in  England ;  yet  this  must  be  restricted 
to  discussion  upon  such  laws,  as  under  the  words  of  the  Charter, 
became  ours.  Will  it  be  contended  that  these  laws  include  clear- 
ly and  unequivocally  such  a  principle  as  that  in  question ;  a  prin- 
c-ple  of  national  policy  ;  but  is  it  a  principle  of  the  law  of  nations. 


Law  Miscellanies.  361 

adopted  by  general  usage  or  recognized  by  writers  ?  But  no  de- 
cision even  in  the  English  courts ;  save  that  of  Hughes  and  Cor- 
nelius, took  place  before  the  period  of  our  revolution.  That  of 
^Mansfield  in  Bernardi  vs.  Matteaux  as  has  been  said,  was  after  the 
revolution.  No  decision  has  taken  place  in  our  own  courts  from 
the  period  of  our  emigration,  until  the  period  of  our  revolution, 
nor  since,  extending,  or  sanctioning  this  doctrine  of  the  conclusive- 
ness of  a  sentence  of  admiralty  in  any  case,  much  less  to  the  extent 
here  contended.  And  if  it  did  not  make  a  part  of  the  common  law, 
and  is  introduced  nndcr  that  term  by  the  legislative  act  after  the 
adopting  our  first  state  constitution  "that  all  laws  in  force  at  the 
time  of  making,  Sec.  shall  continue  ;"  what  foot-hold  have  we  in  ap- 
plying this  late  doctrine  of  the  English  courts  ?  more  especially 
when  from  the  decisions  of  foreign  courts  of  admiralty  in  matters 
of  capture,  dl  ideas  of  justice  have  been  lost,  and  with  regard  to 
French  captures  and  condemnation  even  in  the  opinion  of  the  Eng- 
lish courts  themselves :  in  wliich  we  agree  with  them,  that  at 
certain  periods,  libelling  and  condemnation  were  the  same  thing, 
in  the  French  courts.  But  we  add,  in  the  English  courts  of  admi- 
ralty also.  There  were  the  forms  of  justice,  but  not  the  substance. 
We  had  monitions,  to  save  appearances,  and  even  had  appeals ; 
but  it  depended  on  the  order  and  temper  of  the  government  from 
time  to  time,  what  chance  of  liberation.  These  things  being  so, 
and  from  the  nature  of  things  they  will  always  be  so,  can  it  be  a 
matter  of  sound  discretion  in  our  courts  to  extend  a  dubious  con- 
struction, or  doubtful  doctrine  to  our  jurisprudence  ? 


The  United  States  v.  Judge  Peters.     5  Cranch,  1 15. 

WOULD  not  this  case  seem  to  have  presented  an  occa- 
sion, where  it  became  necessary  for  the  supreme  court  to 
■exercise  an  ori_§^f;2G/ jurisdiction  in  issuing  a  mandatmis.  It 
may  be  said,  that,  in  those  cases  "  in  which  a  state  shall  be  a 
party,  the  supreme  court  shall  have  original  jurisdiction.^^  But 
in  this  case  there  was  no  state  nominally  a  party,  nor  could 
the  court  know  the  state  of  Pennsylvania,  the  state  suggest- 
ed to  be  a  party,  as  being  in  interest  before  the  court.  An 
amendment  to  the  constitution  had  declared,  "  that  the  judi- 

Z   z 


^ 


362  Law  Miscellanies. 

cial  power  of  the  United  States  shall  not  be  construed  t<» 
extend  to  any  suit  in  laAV  or  equity,  columenced  or  prosecut- 
ed against  one  of  the  United  States  by  citizens  of  another 
state,  or  by  citizens  or  subjects  of  any  foreign  state."  But 
it  was  laid  down  by  the  court,  chief  justice  Marshall's  opi- 
nion, 141,"  that  the  state  of  Pennsylvania  had  neither  posses- 
sion of,  nor  right  to,  the  property  on  which  the  sentence  of 
the  district  court  was  pronounced  ;  and  since  the  suit  was 
neither  commenced  nor  prosecuted  against  that  state,  there 
remains  no  pretext  for  the  allegation  that  the  case  is  within 
that  amendment  of  the  constitution  which  has  been  cited ; 
and  consequently  the  state  of  Pennsylvania  can  possess  no 
constitutional  right  to  resist  the  legal  process  which  may  be 
directed  in  this  case."  The  district  court  had  not  refused 
a  mandamus  to  themselves ;  for  it  would  have  been  absurd 
to  have  asked  it.  There  could  have  been,  therefore,  no  ap- 
peal from  their  judgment  whether  or  not  it  ought  to  issue. 
For  it  was  this  court  that  refused  to  do  an  act,  the  issuing  un 
attachment.  It  was  anginal  in  the  supreme  court  ,*  and  in 
the  face  of  the  case  of  Marbury  v.  Madison,  the  mandamus 
was  issued.  I  do  not  say  the  court  erred  in  this  case ;  but 
that  in  the  case  of  Marbury  v.  Madison,  they  erred  ;  and 
ought  to  have  exercised  an  original  jurisdiction  in  issuing 
a  mandamus. 

The  state  of  Pennsylvania  Avas  incidentally  at  least,  and 
in  my  opinion,  substantially  concerned.  But  I  do  not  enter 
into  this  question,  having  had  it  in  view  only  to  shew  that 
the  court  did  in  this  case  exercise  an  original  jurisdiction  in 
issuing  a  tnandamus. 

The  controversy  was  alarming  at  the  time,  and  could  not 
but  distress  every  good  citizen.  As  to  the  state  being  the 
real  party  interested,  and  substantially  concerned,  I  subjoin 
in  a  note,  a  publication  on  that  side  of  the  argument,  and 
which  appeared  after  the  business  rvas  closed,  in  the  Demo- 
cratic Press  of  the  15th  March,  1810. 

It  is  a  point  to  which  sooner  or  later  we  must  come ;  resist- 
ance to  the  jurisdiction  of  the  federal  courts,  unless  by  an  amcncl- 
nicnt  to  the  conbtitution,  the  necessity  of  it  is   superceded.     Foi 


Law  Misckllanies.  363 

it  is  -not  to  be  supposed  that  these  courts  will  not  usurp  ;  not  that  I 
attribute  to  the  individuals  who  compose  them,  other  dispositions 
than  those  common  to  the  nature  of  man.  But  place  any  one  in 
authority,  and  it  will  be  natural  for  him  to  wish  to  extend  his  pro- 
vince. In  the  English  courts,  it  is  thought  to  be  an  excellence  ; 
and  it  is  even  laid  down  as  a  characteristic  of  a  good  judge,  "  to  en- 
large his  jurisdiction."  This  is  a  maxim  which  has  been  attempt- 
ed to  be  qualified,  by  a  substitution  of  "  to  enlarge  justice."  But 
that  this  could  not  be  the  original  maxim,  is  evident,  from  the  ab- 
surdity of  talking  of  enlarging  justice.  For  in  that  case,  it  would 
become  injustice.  The  meaning  of  the  maxim  is,  that  it  is  not 
the  part  of  a  good  judge,  to  be  squeamish  in  determining  the  ex- 
tent of  his  cognizance. — And  in  fa.ct,  in  the  comls  of  England,  they 
have  not  been  squeamish.  The  court  of  King's  Bench,  is  in  strict- 
ness, a  criminal  court ;  j'et  by  a  fiction  has  drawn  to  itself  the  juris- 
diction of  matters  of  meum  and  tuuin,  which  were  originally  the 
exclusive  subject  of  the  cognizance  of  the  common  pleas.  We 
know  the  controversies  that  have  existed  on  these  heads,  betv/een 
those  courts  ;  as  well  as  between  the  courts  of  common  law  in  ge- 
neral, and  the  court  of  Chancery,  in  matter  of  jurisdiction.  But 
this  controversy  can  come  to  no  dangerous  result  in  that  country  ; 
where  they  have  an  appeal ;  or  a  Avrit  of  error  to  the  house  of  lords, 
where  the  question  can  receive  an  ultimate  determination ;  this, 
not  by  the  courts,  claiming  the  jurisdiction;  but  by  an  independent 
tribunal;  this  tribunal,  not  perhaps,  so  well  informed  as  either  of 
the  respective  courts,  claiming  jurisdiction  ;  but  not  having  their 
opinions  pre-engaged  or  their  passions  emljarked  in  the  contro- 
versy so  that  ia  the  opinion  of  the  people  being  more  remote  from 
bias,  they  are  more  likely  to  give  satisfaction. 

We  have  seen  a  late  controversy  in  the  state  of  New-York, 
between  tlic  supreme  court  and  the  jurisdiction  of  the  chancellor 
in  a  matter  of  conteimpt.*  The  writ  of  error  or  appeal,  I  forget 
which  it  was, /ay  by  the  constitution  of  that  commonv/ealth,  to  the 
Senate  of  the  state.  This  ti*il)unal  not  perhaps,  correctly ;  but 
to  the  public  satisfaction,  because  an  independent  tribunal,  deter- 
mined against  the  chancellor's  authority  ;  though  it  had  been  sanc- 
tioned by  the  opinion  of  the  majority  of  the  s^ijircme  court.  Where 
a  question  of  jurisdiction  arises,  there  never  will  be  satisfaction 
by  a  detennination  of  the  tribunal  itself  which  claims  the  jurisdic- 
ti<'»n.     And    we  know  that  the  giving  satisfaction,  is  a  matter  of 

*  The  Commonti'calth  v.    Van  JW-ss. 


364  Law  Miscellanies. 

much  moment  to  the  peace  of  the  community,  in  the  administra- 
tion of  justice.  Hence  it  was,  that  in  forming  the  federal  constitu- 
tion, there  was  no  point  upon  which  the  ablest  members  of  the 
convention,  were  more  at  a  loss,  than  upon  this,  of  the  jurisdiction 
of  the  federal  courts.  After  all,  it  was  considered  as  a  matter 
which  must  be  left  in  a  great  measure,  to  future  regulation  ;  and 
was  a  principal  ground  of  that  clause  of  the  constitution,  which 
provides  for  an  amendment. 

It  was  impossible  to  foresee,  perfectly,  how  this  wheel  would 
move ;  or  what  necessity  there  might  be  for  the  enlargement  or 
the  contraction  of  it.  If  the  constitution  had  remained  as  it  was, 
the  judicial  power  of  the  union,  extending  to  a  case  where  a  state 
"Was  a  party,  there  Avouldhave  been  less  difficulty  in  ascertaining, 
the  constitutionality  or  legal  exercise  of  the  power,  there  being  no 
exclusion.  But  the  amendment  to  the  cofistitution  of  the  United 
States  necessarily  introduced  a  difficulty,  in  all  cases  where  a  state 
might  allege  itself  a  party,  the  pica  to  the  jurisdiction  being  made 
to  the  very  power  whose  jurisdiction  it  was  the  object  of  the  amend- 
ment to  exclude.  It  is  thus,  that  in  the  alteration  of  any  structure 
or  machine,  an  alteration  of  more  is  required  than  the  particular 
part;  and  this,  in  order  to  adapt  the  proportions  of  the  other  parts 
to  that  Avhich  is  altered.  The  amendment  of  the  constitution  in 
the  particular  in  view,  ought  to  have  carried  with  it,  the  establish- 
ment of  some  authority  to  determine  in  what  cases  "the  state  was 
a  party."  This  authority  ought  to  be  independent  of  that  tribunal 
which  was  to  take  cognizance  of  the  trial,  supposing  it  to  be  a  case 
where  the  state  ivas  not  a  partij.  This  was  a  great  omission.  Of 
what  use  to  exclude  a  jurisdiction,  and  at  the  same  time  to /eo-ye  it 
to  itself  to  say  whether  it  was  excluded  ?  Admitting  that  it  may 
be  some  check  on  the  discretion  of  the  power ;  yet  it  can  constitute 
no  certain  bar.  The  state  independency  which  was  in  the  view  of 
the  amendment,  is  not  secured  in  an  effectual  manner ;  but  still 
subject  to  the  federal  judiciary. 

It  will  be  said  what  amendment  could  be  thought  of :  what 
practicable.  The  most  convenient  that  occurs  to  me  to  think  of, 
and  the  most  advisable  to  adopt,  would  be  the  Senate  of  the  Union. 
These  consisting  of  an  equal  representation  of  the  states  ;  interest- 
ed equally  in  the  conservation  of  their  independence,  would  be 
the  safest  and  most  natural  tribunal  before  whom  a  question  of  the 
state  sovereignty  could  be  brought.  Without  some  such  tribunal, 
what  is  a  state  to  do  in  case  of  federal  usurp  ition  ?  If  a  munici- 
pal court  usurps  jurisdiction,  it  is  justifi:.b!e  to  resist  the  process. 


Law  Miscellanies.  365 

It  is  a  pvlnciple  of  law,  that  the  process  oF  a  court  having  no  juris- 
diction of  the  case,  is  not  merely  voidable,  but  absolutely  void.  The 
officer  with  the  process  in  his  hand  is  a  tresspasser;  and  may  be 
resisted.  Who  is  to  judge  whether  the  court  has  jurisdiction  ? 
The  mdividual  interested  has  a  right  to  judge  for  himself.  No 
man  can  question  his  right,  but  it  must  be  at  his  peril.  The  state 
sovereignty,  under  this  amendment,  is  placed  as  an  individual  in 
the  union  of  the  states.  Has  not  the  state  a  right  to  judge  as  an 
individual  would  have,  of  the  jurisdiction  of  a  court  from  which 
process  issues  ?  But  it  must  be  at  its  peril.  I  agree  ;  and  this 
proves  that  it  must  be  the  state  sovereignty  itself ^  that  alone  can  take 
upon  it  to  determine  when  and  where  its  sovereignty  has  been  in- 
vaded ;  and  where  it  ought  to  resist.  It  must  be  a  question  of 
state  decision,  and  no  authority  is  competent  to  decide  so  as  to 
act  in  consequence  of  a  decision,  but  the  state  itself. 

This  proves  that  the  judiciary  of  a  state,  being  bu.t  a  branch 
of  the  government,  cannot  be  competent  to  decide  on  the  jurisdic- 
tion of  the  United  States  courts  ;  so  as  to  liberate  on  a  habeas  cor- 
pus ;  for  this  would  be  drawing  with  it,  an  opposition  to  the  laws 
of  the  United  States  by  an  act  of  the  judiciary;  and  would  be  ad- 
mitting a  power  to  involve  the  state  in  war,  without  the  knowledge 
or  consent  of  the  sovereign  power.  Posse  against  posse,  would  be 
the  same  thing  as  a  levied  force,  on  the  side  of  the  executive  of  the 
state  ;  and  that  of  the  union. 

Had  the  State,  in  the  case  of  Olmstead  a  right  to  decide  for 
itself,  on  the  jurisdiction  of  the  United  States  ?  What  doubt  can 
there  be  of  this  ?  Has  an  individual  a  right  to  judge  for  himself, 
of  the  jurisdiction  of  a  covirt  to  which  he  is  called  to  answer  ? 
Doubtless.  There  is  no  lawyer,  or  law  book,  that  will  deny  this. 
But  it  must  be  at  his  peril  that  he  undertakes  to  decide.  It  will 
be  the  expediency  that  will  be  the  only  question.  It  will  not  be 
advisable  perhaps  where  the  court,  whose  process  he  undertakes 
to  dispute  will  have  a  right  to  decide  on  his  plea.  He  must  look 
to  the  consequences,  and  count  all  the  costs.  In  a  communitv 
where  his  defence  may  come  before  a  different  tribunal,  the  prin- 
ciple not  only  holds  of  a  void  process ;  but  it  may  be  carried 
into  practice,  and  acted  upon  by  the  people ;  it  must  be  a  clear 
case  indeed,  that  will  induce  a  man  to  resist  where  he  means  to 
insist  upon  the  want  of  cognizance  in  the  tribunal,  from  whence 
the  precept  may  issue.  He  will  suffer  much,  before  he  will  ven- 
ture to  kill  or  wound  in  opposition  to  the  writ.  The  like  prudence 
Will  be  observod  on  the  part  of  a  sovereign  state,  who  is  as  an  in- 


366  Law*  Miscellanies. 

dividucil  in  the  community  of  states.  Greater  hesitation  will  be  ne- 
cessary where  it  can  only  be  before  the  very  court  that  issues  the 
process,  that  the  enquiry  can  be  made  of  the  want  of  jurisdiction. 
But  if  resistance  is  not  made,  it  is  waving  a  right  on  the  ground  of 
expediency  ;  which  may  cease  to  have  the  appearance  of  a  right, 
by  the  submission.  It  may  grow  into  precedent,  and  be  protected 
by  the  stare  decisis  of  the  law.  For  acquiescence  is  itself  an  evi- 
dence of  right ;  and  it  is  observable  that  in  this  very  case  of  Olm- 
stcad;,  the  decision  of  the  court  in  the  case  of  Doan  vs.  Penhallow  ; 
3  Dall.  54,  and  the  acquiescence  of  the  state  concerned,  that  of 
New  Hampshire,  is  made  a  foundation  whereon  to  rest,  as  to  a 
particular  of  the  decision  then  to  be  made.  It  is  called  settling'  a 
matter  where  it  has  been  once  decided.,  nor,  with  this  principle  of 
regarding  precedent,  do  Ave  find  fault ;  but  we  shew  the  effect  of 
a  decision,  and  an  acquiescence. 

But  what  madness  must  it  be  in  a  state  to  resist  where  the  pre- 
sumption almost  necessarily  arises  that  the  determination  of  the 
same  court  will  be  the  same  ;  it  will  be  a  bold  daring,  unquestion- 
ably, and  must  look  like  madness.  In  the  case  of  an  individual  it 
may  have  the  same  appearance  to  resist  the  jurisdiction  of  a  mu- 
nicipal court:  especially  where  the  government  is  known  to  make 
a  point  of  having  a  lav/,  or  the  construction  of  a  law  carried  into 
effect.  Yet  John  Hampden  did  resist  the  le-vy  of  ship  money  ; 
and  was  indicted  and  convicted  for  that  resistance  ;  yet  the  resist- 
ance Avas  not  ultimately  without  a  good  effect ;  and  though  I  say 
nothing  as  to  the  right ;  much  less  the  expediency  of  resistance 
in  Olmstead's  case,  yet  I  entertain  the  idea  that  it  will  be  attended 
with  the  good  consequence  of  leading  the  public  mind  to  attend  to 
tjie  necessity  of  a  provision  for  the  removal  df  the  grievance  which 
gave  rise  to  that  expedient.  I  do  not  say  our  marshal  did  not  do 
his  duty  in  Olmstead's  case  ;  for  there  was  but  one  other  thing  that 
he  could  have  done  (and  this  he  was  not  bound  to  do)  which  was 
to  return  his  writ  with  a  special  indorsement  of  the  ofifiosition 
made  to  the  execution  of  the  process  ;  so  that  the  court,  on  laying 
this  before  the  executive  of  the  union ;  and  which  by  him,  being 
laid  before  the  representatives  of  the  people,  the  grounds  of  the 
resistance  of  the  state  might  be  considered ;  and  the  expedience 
of  an  act  of  war  on  one  of  the  state  sovereignties  might  be  the  sub- 
ject of  deliberation.  For  it  would  behove  the  union  to  be  as  cir- 
cumspect, and  cautious  in  making  war  upon  a  state,  as  in  a  state 
to  make  pp^josition  to  the  g-eneral  government.     It  is  true^  a  state 


Law  Miscellanies.  367 

is  the  •weaker  power ;  but  the  convulsion  of  a  struggle  Avould  not 
be  favourable  to  the  permanence  of  the  stronger.  It  is  presuma- 
ble that  the  Legislature  of  the  state  in  enacting  the  law  of  1803, 
acted  under  the  idea  that  the  matter  miglit  take  such  a  turn  aa 
that  which  we  have  hmted  ;  viz.  a  special  return  of  the  marshal  ; 
and  which  I  humbly  think  might  have  been  advisable,  rather  than 
a  calling  out  the  posse  in  the  first  instance.  For  I  cannot  think 
that  the  ultima  ratio,  directly  looking  at  it,  could  be  in  view.  It 
was  too  appaling  to  be  contemplated,  without  more  apprehension, 
than  had  generally  pervaded  the  community.  .  That  the  idea  oi 
resistance  by  means  of  the  ci-vil  authority,  could  come  into  the  mind 
of  any  one  well  informed,  is  impossible,  because  the  absurdity  of 
the  consequence  when  drawn  out,  posse  agamst  posse  ;  sheriff 
against  marshal,  shews  the  falsity  of  the  proposition.  But  I  take 
it,  the  mind  of  the  Legislature  was  directed  solely  to  the  getting 
the  matter  brought  before  the  Congress  of  the  Union,  in  order  to 
have  it  considered,  whether  it  was  a  casus  belli,  or,  just  ground  of 
the  declaring  war  against  a  state ;  or  in  other  Avords  declaring 
that  state  in  rebellion  ;  and  determining  on  a  recourse  to  execu- 
tive force  to  subdue  it.  For  that  the /losse  of  the  district,  could 
have  been  competent  if  the  opposition  of  the  state  had  continued, 
is  not  to  be  supposed.  The  proportion  of  the  force  on  one  side, 
and  on  the  other,  rendered  it  morally,  if  not  physically  impossible. 
But  the  state  thought  it  expedient  to  submit ;  and  it  did  appear 
to  me  to  be  expedient.  Enough  had  been  done  to  attract  atten- 
tion ;  and  this  must  have  been  the  original  object  of  the  act  of  As- 
sembly of  1803.  But  could  not  attention  liave  been  attracted  by 
remonstrance  on  the  floor  of  Congress,  through  the  medium  of  our 
Representatives  ?  that  is  one  way  doubtless  ;  but  it  must  have 
been  in  the  shape  of  an  imfieach7nent  against  the  Judges ;  and 
though  I  will  not  say  that  an  assumption  of  jurisdiction,  where  it 
does  not  exist,  is  not  impeachable ;  yet  v/hoever  could  tliink  of 
sustaining  an  impeachment  where  the  error  was  miLrely  that  of 
the  judgment,  and  no  question  of  tlie  purity  of  the  intention  ?  And 
i  take  it  that  in  this  case  of  Olmstead,  no  one  has  evei-  for  a  nui- 
ment  questioned  the  integrity  of  the  United  States  courts ;  but 
the  error  of  the  judgment  only.  The  human  mind  nuist  incJine 
so  much  in  such  a  case  to  acqull,  that  the  determination  could 
not  be  as  ina  mutter  of  mourn  and  tuum  of  state  right,  and  Mould 
be  totally  incompetent  to  ascertain  v,  ilh  satisfaction  to  those  co/i- 
rerned  ;  or  even  lo  the  pul/iic,  the  abstract  justice  of  the  cuse. 


358  Law  Miscellanies. 

The  legislature,  I  make  no  doubt,  had  all  these  considerations 
in  tlieir  minds  in  the  act  of  1802,  and  their  views  were  not  direct- 
ed ultimately  to  a  conflict,  but  to  a  negociation.  It  was  thought 
sufficient  to  break  the  case.  The  fact  is,  there  are  situations  in 
the  affairs  of  communities,  where  something  palpable  only  can 
rouse.  Lucretia's  stabbing  herself  by  her  own  hand,  and  Virgi- 
nius  stabbing  his  daughter,  are  instances  of  this  in  the  Roman  re- 
public. What  but  the  one  could  have  roused  attention  to  the 
tyranny  of  kings,  and  the  other  to  that  of  the  decemviri,  so  as  to 
have  produced  a  change,  as  no  one  has  since  doubted,  a  ha^ipy 
amendment  in  the  constitutioji  of  the  go-vernment  ?  There  is  such 
a  thing  as  a  stage  effect,  in  order  to  engage  attention.  The  pub- 
lic attention  must  be  excited  a  great  deal  by  this  transaction  ;  and 
not  the  less  perhaps,  because  it  has  not  been  carried  farther ;  since 
it  has  been  taken  up  in  the  legislature  of  the  state,  canvassing  the 
authority  of  the  power  to  call  out  the  militia,  and  resist  the  process 
of  the  court.  That  the  legislature  must  approve  it,  was  unavoida- 
ble to  be  consistent  with  themselves  ;  such  of  them  as  had  been  of 
the  legislature  and  had  actually  voted  for  the  law,  for  in  that  case, 
they  had  ordered  it.  They  had  not  only  enacted  it  in  express 
terms,  but  it  had  continued  a  statute  of  several  years  standing. 
The  legislature  in  session  at  the  very  crisis  it  began  to  be  acted  on, 
and  no  bill  brought  in,  or  motion  made  to  modify  or  repeal  it.  As 
to  the  Governor  having  done  what  had  been  enjoined,  there  could 
be  no  question  on  a  candid  consideration  of  the  words ;  nay,  I  am 
not  able  to  put  any  face  on  a  construction  to  the  contrary,  or  to  de- 
vise how  it  could  have  been  avoided  by  him.  It  is  a  duty  positive- 
ly enjoined,  and  which  admits  of  no  evasion,  from  the  express 
terms  of  the  injunction.  The  Governor  by  the  constitution  of  the 
state,  or  by  law,  has  no  command  over  the  civil  authority.  He 
could  not  command  a  single  justice  to  issue  his  warrant,  to  arrest 
the  Marshal  for  a  breach  of  the  peace ;  if  it  could  have  been  of 
any  use  to  arrange  the  civil  authority  of  the  state  against  that  of 
the  union,  under  the  idea  of  having  a  force  competent  to  resist,  or 
not  iKvolving  the  same  consequence  of  a  disruption  of  the  commune 
i-mculuvi.,  or  cord  which  binds  us  together.  The  only  means 
which  the  Governor  had  iojirotect  against  the  /irocess  of  the  fede- 
ral court  was  the  miliiia.  V/hen  the  President  of  the  United  States 
tells  the  Governor,  in  his  correspondence,  that  it  was  his  (the  pre- 
sident's) duty  to  execute  the  laws  of  the  union,  it  was  as  much  as 
to  savi^ws/"  as  it  is  yrjurs  to  execute  the  lar^s  \f  tjic  utate. 


Law  Miscellanies.  369 

If  the  question  had  beenfirofiosed  in  the  state  legislature ^simfily 
971  the  duty  of  the  GovernoTy  m  executing  the  laiv^  but  at  the 
same  time  involving  by  im/iHcation^  no  apfirobation^  of  the  law  it" 
.self  there  would  have  been  less  difficulty,  and  of  course  less  dis- 
agreement of  opinion  ;  for  it  cannot  be  contested  with  candor,  but 
that  the  duty  of  the  Governor  was  imperative^  unless  you  allow 
him  in  his  executive  capacity  a  right  to  judge  of  the  obligatory 
force  of  a  law  ;  and  I  could  not  infer  from  any  thing  I  have  heard, 
that  any  one  would  be  willing  to  allow  him  that  latitude. 

Had  I  been  a  member  of  the  legislature  on  the  late  occasion,  I 
do  not  say  that  I  would  have  been  prepared  to  sanction  by  imfilica- 
tion^  the  policy  or  expediency  of  the  law  ;  for  that  involves  an  ex- 
tensive investigation.  I  lay  out  of  the  case  what  has  been  said  of 
the  matter  ceasing  to  be  a  question  of  state  concern  by  the  substi- 
tution of  names,  or  the  denominatio?i  of  property.  For  in  this  I 
think  there  is  nothing  solid.  The  subject  of  controversy  was  at 
first  a  vessel,  the  state  on  one  side,  and  Olmstead  on  the  other,  clai- 
mants of  the  prize.  This  property  was  turned  into  money,  that 
money  deposited  in  the  custody  of  the  law,  by  bringmg  it  into 
court.  The  state  being  a  body  pohtic  could  not  take  it  out  of  court 
but  by  the  agency  of  an  officer.  The  treasurer  of  the  state  as 
her  officer,  did  take  it  out,  and  the  money  was  turned  into  certifi- 
tates.  Does  this  divest  the  state  of  its  claim  upon  the  property  ? 
Is  it  less  a  matter  between  the  state  and  Olmstead  than  it  was  be- 
fore ?  The  treasurer  indorsed  on  the  paper  that  covered  the  certi- 
ficates, "  these  will  become  the  property  of  the  state  when"  &c. 
What  had  Olmstead  to  do  with  the  certificates  ?  It  was  the  money 
for  which  the  vessel  had  been  sold  by  order  of  the  admiralty 
court,  that  was  tlie  subject  of  his  claim.  The  passing  this  into 
certificates,  was  not  his  act.  It  was  that  of  the  state,  of  which 
act,  he  could  not,  in  contemplation  of  law,  be  supposed  to  have 
any  knowledge.  It  was  the  vessel,  or  the  pi'oceeds  in  money, 
that  he  could  alone  claim.  If  the  money  arising  from  the  sale  of 
the  vessel  had  been  converted  into  cattle,  could  he  have  claimed 
the  cattle  ?  Or  if  he  did,  could  he  have  said,  the  money  has  now 
Siecome  cattle,  and  therefore  the  clairn  of  tiic  state  is  extinguished, 
and  she  has  ceased  to  be  a  party.  Yet  this  is  the  miserable  quib- 
ble upon  which  the  great  legal  characters  that  have  canvassed 
this  subject,  on  the-  part  of  Olmstead,  have  undertaken  to  put  it. 
But  it  would  seem  to  rac  that  if  nothing  more  soiid  can  be  advanc- 
ed, the  m-ittcr  must  be  considered  a  state  claim.     The  position  is 

3  A 


370  Law  jNIiscELLANifts. 

more  tenable  that,  tlie  amendment  to  the  constitution  does  not  extend 
to  suits  of  admiralty.,  and  maritime  jurisdiclioji.     This  position   I 
will  not  undertake  to  canvass,  because  it  is  not  necessary.   For  it 
seems  to  me  that,  since  the  adoption  of  the  constitution,  admitting- 
that,  a  parte  post,  the  United  States  courts  draw  the  jurisdiction 
of  all  claims  of  right,  or  complaints  of  Avrong  originating^  on  the 
high  scasy  let  the  parties  be  what  thcj-  may,  and  this  as  a  jurisdic- 
tion incident  to  the  sovereign  power  ;  yet  this  ground  of  claim  was 
antecedent  to  the  constitution,  and  not  surviving  to  the  new,  be- 
cause not  cognizable  under  the  old.     Doubtless  the  jurisdiction 
had  been  assumed,  or  at  least  claimed  under  the  old  confedera- 
tion ;  but  it  was  this  very  assumption  or  claim  which  the  state  at 
all  times  had  protested  against,  and  Avas  unwilling  to  admit.     It 
will  not  justify  her  to  say  that  committees,  or  that  congress  under 
the  confederation,  had  sustained  the  appeal ;  but  she  called  it  a 
usurpation,  and  still   calls  it  a  usurpation,  it  beuig  originally  a 
mere  matter  of  fact  that  was  triable  in  the  case  of  Olmstead,  and 
that  having  been  found  by  a  jury,  and  the  state  when  she    gave 
the  appeal  to  congress  in  admiralty  cases,  expressly  excepting  an 
appeal  on  a  jnatter  of  fact  ;  and  the  admiralty  court  of  the  allied 
states, before  the  ratification  of  the  confederation  having  no  juris- 
diction, but  by  the  express   grant  of  each  state,  the  confederation 
could  not  by  relation,  give  such  a  power.     To  say  the  least  of  it, 
the  jurisdiction  assumed  was  extremely  questionable,  and  it  can- 
not be  said  by  any  candid  man,  but  that  there  was  strong  ground 
whereon  to  rest  an  opposition.     With  respect  to  the  policy  of  con- 
testing or  submitting,  I  say  nothing  ;  and  it  is  to  be  presumed  the 
state  might  have  acquiesced,  but  for  the  assumption  of  jurisdiction  in 
other  cases,  which  had  excited  considerable  alarm,  but  of  which  I 
have  no  disposition  to  enter  into  an  examination  at  present;  but 
at  the  same  time,  expressing  my  apprehension,  that  without  sonic 
tribunal  other  than  the  courts  of  the  United  States  themselves,  it 
may  be  found  difficult  to  go  on  without  a  schism.     I  propose  the 
senate  of  the  Union  as  this  tribunal,  and  in  order  to  secure  all  lea- 
sonable  consideration  in  favor  of  the  judiciary  decisions,  on  ques- 
tions of  jurisdiction,  let  a  majority  of  two-thirds  be  necessary  to 
reverse  a  judgment  of  a  court,  on  a  plea  to   the  jurisdiction,  and 
this  is  the  same  majority  which  would  be  necessary  to  convict  on 
an  impeachment.     Unless  it  is  to  be  assumed  as  a  principle  that  the 
United  States  courts  "  can  do  no  -wrong  "  their  Jurisdiction  will  be 
questioned,  ;}nd  wlien  questioned,  what  can  be  done  by  an  uidividu- 


Law  MiscEi.LANir s.  371 

nl  state  but  to  resist  ?     This  may  be  clone  without  looking  forward 
to  a  disruption  of  the  union  as  s.  necessary  consequence. 

On  tlic  resistance  of  the  colonies  to  the  mother  country  of  Great 
Britain,  at  the  commencement,  and  for  a  long  period,  there  was 
no  idea  of  a  revolution,  on  the  part  of  Ae  colonies,  but  of  bringing 
the  matter  to  a  negociation.  This  proves  that  resistance  to  an  un- 
constitutional jurisdiction,  does  not  necessarily  involve  an  inten- 
tion to  dissolve  the  government.  Remonstrance,  and  representa- 
tion may  l)e  found  ineffectual ;  and  the  only  means  left  may  be  an 
opposition  to  the  exercise  of  the  assumed  authority:  and  the  on- 
ly question  will  be,  whether  to  wait  until  the  invasions  are  so 
monstrous  and  palpable  as  to  shock  every  mind;  or  to  re&ist  the 
fii'gimiing'  of  usurpation. 

This  was  done  in  the  resistance  by  the  colonies  to  the  mother 
country  of  Great  JJritain.  For  it  v/as  not  so  much  the  weight  of 
the  oppression  that  was  felt,  but  an  abntraci  firinci/ile  that  Avas  dis- 
puted, which  gave  rise  to  the  revolution.  The  claim  of  binding 
the  colonies  by  an  act  of  parliament  "  in  ell  cases  w/iatevcr." 

The  principal  oljjection  to  the  stopping  short  of  resistance  to 
an  unconstitutional  authority  in  the  first  aggression,  is  the  danger 
of  allowing  precedents.  It  is  now  agreed  in  Olmstead's  case,  and 
made  the  foundation ;  and  indeed  the  only  ground  that  I  see  on 
the  part  of  the  United  States  courts,  that  the  recommendation  of 
congress  to  institute  Admiralty  courts  by  the  individual  states,  and 
the  individual  states  in  that  and  other  instances,  submitting  to  these 
recommendations  gave  them  the  force  of  laio  :  and  the  quaUfLca- 
tions  of  adoption,  are  disregarded.  The  exception  is  thrown  out 
of  the  case,  and  the  whole  power  recommended,  is  assumed  \  and 
because  it  has  been  assumed',  it  has  become  legal. 

The  states  were  united  but  sub-modo  ;  and  they  had  no  prize 
court.  They  actually  had  no  pov.  cr  to  establish  a  Judiciary  tribu- 
nal in  any  state.  Each  state  was  a  sovereign  power  itself,  and  but 
in  the  capacity  of  an  alUj^  for  the  purposes  of  the  confederacy. 
Tlie  prize  court  was  that  of  the  state,  with  a  power  of  revision  to 
the  council  of  the  confederacy,  as  far  as  the  state  had  judged  it  ne- 
cessary to  concede  it. 

It  was  not  necessary,  save  in  the  case  of  an  alien  alleging  the 
firivilege  of  a  neutral ;  and  even  in  this  case,  not  farther  than  the 
conclusion  of  law  from  facts  found.  But  admitting  it  to  be  ne- 
cessary, it  Avas  an  argument  why  the  revision,  without  exception^ 
h'h.ould  have  been  given  to  the  congress  ;  but  it  could  go  no  length 


372  Law  Misgellanies. 

to  prove,  that  it  had  been  cfiven.  It  has  been  said,  that  it  was  aii 
incident  to  the  sovcrcig'nti/  ;  but  this  is  beg-ging  the  qviestion,  that 
there  was  a  sovereignty  to  this  extent.  If  it  v/as  an  incident  of 
sovereignty,  why  not  establish  admiralty  courts  by  authority  of 
the  sovereignty  ?  Why  treat  it  as  a  matter  of  courtesy  and  recom- 
mend ?  It  has  been  contended  that  to  Tccoimnend  was  the  same  as 
to  enact.  Had  the  recommendation  of  congress,  agreeably  to  the 
5th  article  of  the  treaty  with  Great  Britain  the  force  of  an  act  ? 
There  was  not  the  least  attention  paid  to  it  by  any  of  the  states, 
though  this  was  after  the  ratification  of  the  confederation  in  1781  ; 
not  until  which  had  the  congress  any  power  whatever,  but  what 
they  were  allowed  to  exercise.  The  point  is  not  tenable ;  and 
whatever  may  have  been  the  justice  of  the  claim  of  Olmstcad.^  the 
committee  of  Congress  formerly,  or  the  courts  under  the  present 
constitution,  had  no  jurisdiction  of  the  question. 

I  will  admit,  that  where  there  is  jurisdiction  the  courts  will  look 
at  the  justice  of  the  case,  on  grounds  of  moral  equity  ;  and  will  be 
astute  in  saving  it  from  the  operation  of  a  general  rule.  But  on 
the  contraiy,  in  considering  the  question  of  jurisdiction,  they  will 
not  be  justifiable,  in  looking  at  the  merits  of  the  particular  case; 
for  they  have  no  right  judicially,  to  think  upon  the  subject.  Where 
the  danger  is  of  being  trespassers  to  an  awful  extent,  the  endan- 
gei'ing  the  peace  of  the  union,  it  becomes  them  to  stop  short,  ra- 
ther than  exceed.  In  applying  their  powers  to  a  particular  case,  a 
strict  construction  is  demandable.  No  wantonness  of  assumption  in 
the  face  of  a  people,  jealovis  of  state  rights.  I  will  leave  it  to  be 
considered  by  themselves  for  the  present,  whether  there  has  been 
on  all  occasions,  such  delicacy  in  taking  cognizance,  as  a  mind 
perfectly  awake  to  the  importance  of  the  consideration,  would 
have  thought  it  advisable  to  exercise. 

The  necessity  of  some  tribunal  to  pass  upon  the  question  of  ju- 
risdiction of  the  United  States  courts,  where  a  state  is  concerned, 
has  been  pressed  upon  the  state  of  Pennsylvania,  in  the  case  of  what 
is  called  the  actual  settler  under  the  act  of  Asse7nbly  of  the  3d 
April,  1792.  The  case  of  every  actual  settler  under  that  act,  is  in 
fact  a  case  where  the  state  is  concerned  ;  and  an  ejectment,  though 
nominally  against  the  settler,  is  in  fact  against  the  state.  Under 
the  act  of  3d  April,  1792,  a  great  tract  of  country  was  disposed  of 
in  consideration  of  money  and  settlement.  The  one  half  consi- 
deration, the  inoneij  /tart,  to  be  paid  first,  and  the  settlement  to  be 
made  afterwards  ;  or  the  settlement  to  be  made  first,  and  the  one 
half  consideration  rmoney)  to  be  paid  with  mterest  afterwards.     In 


Law  Miscellanfes.  373 

the  case  of  him  who  has  paid  the  one  half  consideration  (money) 
and  is  to  satisfy  the  remaining  half  by  settlement,  it  is  stipulated 
that  it  shall  be  in  a  given  time  ;  as,  otherwise  he  might  never 
satisfy,  at  all,  what  remained  due.  This  is  stipulated  to  be 
t-vo  ycars^  within  v/hich  tlie  satisfaction  remaining  due  shall 
be  begun  to  be  made.  And  that,  Avithin  that  time,  it  shall  be 
begun  to  be  made,  unless  prevented  by  the  enemies  of  the  state. 
On  the  part  of  those  v*'ho  had  paid  the  one  half  consideration 
(money)  first,  and  were  to  satisfy  the  remainiiig  one  half  of 
the  consideration  of  fhe  purchase,  the  settlement,  w'xihXn  two  years. 
It  is  said,  they  have  been  prevented  by  the  enemies'  of  the  state  from 
beginning  within  tKvo  years  to  make  a  settlement ;  and  therefore 
are  excused  from  satisfying  the  state  as  to  the  remainder  of  the 
consideration  altogether.  I  say  nothing  of  the  absurdity  of  this 
consti'uction  of  the  contract  nvhich  the  courts  of  the  United  States 
have  sanctioned  ;  because  I  deny,  that,  being  a  state  claim,  they 
had  jurisdiction  of  the  question. 

For,  in  case  of  the  remainder  of  the  consideration,  the  settle 
ment,  not  being  satisfied,  within  the  time,  an  entry  is  given  to  the 
state  to  have  it  made  by  such  as  shall  make  the  settlemciit  first,  and 
pay  money  with  interest  afterwards.  The  state  enters  ;  which  she 
cannot  do,  being  an  incorporeal  body,  but  by  purchasers  under  her  ; 
or  in  other  words,  persons  actually  settling,  and  coming  under  the 
contract  of  satisfying  as  to  the  remainder  of  the  consideration, 
(money)  afterwards.  The  ejectment  in  that  case  is  nominally 
against  the  actual  settler,  but  in  reality  against  the  state.  For  if 
the  actual  settler  is  disturbed  in  his  settlement,  the  state  loses  the 
^d\i  original  consideration  cf  the  sale. 

But  how  shall  it  appear  to  the  United  States  courts,  that  the  state 
is  the  party  when  she  is  not  nominally  on  the  record  ?  The  an- 
swer is  easy  ;  by  admitting  evidence  of  the  truth  of  the  fact  ;  and 
this  to  the  courts  themselves,  who  are  to  judge  of  the  jurisdiction, 
on  affidavit  shewing  the  truth  of  the  fact.  The  enquiring  as  to 
the  real  plaintiff  or  defendant  in  a  case,  is  familiar  in  the  courts, 
either  with  a  view  to  the  competency  of  testimony  offered  ;  or 
as  to  the  liability  for  costs ;  and  this  is  by  facts  disclosed  to  the 
court  on  affidavit,  or  otherwise.  The  operation  also  of  a  verdict, 
and  judgment  on  the  same  point,  and  between  the  same  parties  re- 
ally, though  not  nominally,  can  be  reached  only  in  the  same  \Vay  ; 
and  it  can  be  reached  in  this  v/ay,  notvvithstanding  all  shifts  in  the 
Tcal  party  to  put  forward  another  name  on  the  record  by  a  collu- 
sive transference,  or  substitution,  by  any  contrivance  that  the  craft 


374  Law  Miscellanies. 

of  the  profession  or  the  manaj^ement  of  the  suitors  may  devise. 
In  such  a  case  it  is  the  duty  of  the  court  to  endeavor  to  get  at  the 
fact ;  and  to  defeat  the  subtilily  of  evasion. 

In  the  amendment  to  the  constitution,  are  tlic  cases  in  view 
only  those,  where  the  state  is  nominally  a  parly,  and  where  the  re- 
covery must  act  directly  upon  it  as  a  body  politic  ?  That  is  to  say 
"where  money  is  recovered,  the  levy  must  be  upon  the  money  of  the 
state,  in  the  hand  of  the  state  treasurer  :  or  upon  public  lands,  and 
tenements  such  as  a  state  house  lot,  or  building.  If  that  be  so  the 
amendment  can  in  most  cases  be  evaded.  The  suit  for  debt,  if 
such  be  the  nature  of  the  demand,  may  be  brought  against  the 
treasurer,  as  having  that  money  in  his  hand  to  which  the  claimant 
has  a  right ;  or  on  an  ejectment  brought  against  a  tenant  of  the  pub- 
lic lot,  a  recovery  may  be  had  though  it  is  the  state  that  is  actu- 
ally put  out  of  possession.  If  the  co\irts  cannot  reach  such  a  case ; 
or  if  it  camiot  be  pushed  upon  them  so  as  to  oust  their  jurisdic- 
tion under  this  amendment,  my  argument  is  gone,  and  the  state 
prerogative  thought  to  be  saved,  will  be  narrowed  to  a  very  small 
compass  indeed.  It  can  be  applied  only  to  cases,  where  the  party 
cannot  by  any  means  give  his  claim  such  a  shape,  that  he  may  pur- 
sue it  indirectly  without  putting  the  state  in  his  writ,  or  declara- 
tion. 

The  state  of  Pennsylvania  never  can  be  reconciled  to  what  she 
Qonceives  to  be  an  unwarrantable  assumption  of  jurisdiction  of  the 
United  States  court,  under  the  act  of  3d  April,  1792,  laying  even 
aside  the  construction,  monstrous  and  shocking,  as  it  would  seem 
to  be,  which  they  have  put  upon  that  act.     She  has  been  very  near 
going  as  far  in  that  case,  as  in  the  case  of  Olmstead,  and  by  a  le- 
gislative act  prqviding  against  tiie  effect  of  a  judgment   given  in 
such  a  case,  by  directing  the  governor  to  ofifioae  force  ;  which  if 
they  were  to  do,  I  do  not  know  how  he  could  escape  the  duty  but 
by  resignation ;  and  in  that  case  he  miglit  be  followed  by  an  im- 
peachment for  a  dereliction  of  his  duty.     It  is  under  a  sense  of 
these  difficulties,  and  appaling  consequences,  that  I  look  forward 
to  an  amendment  of  the  constitution,  by  providing  a  tribunal  inde- 
pendent of  the  courts  to  decide  in  the  case  of  a  contested  jurisdic- 
:io}7.  .  PENNSYLVANIENSIS. 


Law  Miscellanies.  STuS 

Pierce  v.  Turner.     5  Cranch,  154. 

ERROR  to  the  Circuit  Court  of  the  District  of  Colum- 
bia, &c.  case  on  a  special  verdict. 

In  this  case  Johnson,  J.  dissented  from  the  opinion  of  the 
court ;  and  on  examination  I  am  of  opinion  that  he  vra.s 
right;  and  not  only  right  in  his  judgment,  but  concise  and 
correct  in  his  reasons  given.  In  page  170,  he  hits  the  point 
like  a  ball  from  a  rifle,  and  knocks  down  the  fallacy  of  the 
argume*  on  the  other  side.  Credit  given  on  the  ostensible 
possession  of  property ;  is  the  credit  to  be  defeated  by  a 
deed  that  is  concealed,  and  the  person  to  be  benefitted 
whose  duty  it  was  to  have  made  it  public.  "  The  creditors, 
in  order  to  maintain  their  action,"  (says  the  Judge)  "  prove 
first,  the  property  in  the  wife  before  marriage ;  then  her  in- 
termarriage with  their  debtor.  These  facts,  in  operation  of 
law,  upon  her  personal  property,  sustain  their  right  of  reco- 
very. But,  in  opposition  to  their  claim,  the  wife  endeavours 
to  avail  herself  of  this  deed ;  and  the  question  is  brought  up 
on  an  exception  taken  by  the  creditors  to  its  validity.  The 
ground  of  their  objection  is,  that  it  wants  that  evidence  of 
authenticity  which  the  law  requires  to  make  it,  as  to  them, 
a  valid  instrument."  I  am  decidedly  of  opinion  with  the 
dissentient  member  of  the  court ;  but  I  take  the  opportunity 
of  saying  that  I  do  not  like  a  dissenting  judge  saying,  as  in 
this  case,  I  am  unfortunate  enough  to  dissent.  For  there 
can  be  no  misfortune  in  the  case.  We  knov/  what  is  meant ; 
it  is  as  much  as  to  say,  I  am  sorry,  that  in  this  case,  I  have 
to  run  a  little  counter  to  the  self-love  of  the  court,  and  lo 
wound  their  pride  so  far  as  my  thinking  them  fallible,  mav 
affect.  The  sting  is,  that  by  this  peace-offering  to  their  tem- 
per, it  should  for  a  moment  be  thought  possible,  that  it  had 
been  hurt,  or  pride  wounded.  It  becomes  a  judge  to  have 
such  self-denial,  and  to  be  of  a  mind  so  perfectly  resigned  to 
the  love  of  truth  and  jusiice,  as  not  to  think  of  his  situation, 
as  to  the  cum  qulbus,  he  may  be.  This,  may  not  be  wholl\- 
in  human  nature ;  but  I  would  have  afpearances  spved,  and 
those  from  whom  one  dissents,  not  supposed  to  have  scnx 
feeling  on  account  of  it ;  nor  ont''<  own  self  to  be  in  the  least 


376  Law  Miscellai<^ies. 

mortified,  because  he  has  not  the  greater  number  on  his  side". 
The  maxim,  cum  Platone  errare,  quam  cum  aliis  recte  sen- 
tire,  has  been  long  exploded,  as  a  self-degrading,  and  igno- 
ble sentiment.  To  deliver  the  dissent,  simply  without  apo- 
logy, or  compliment,  is  the  best.  Nothing  need  be  said  un- 
less, that,  in  expressing  the  less,  or  more  confidence  with 
which  the  dissent  is  made,  there  may  be  the  qualification  of 
saying.  It  would  seem  to  me  ;  or,  on  the  contrary,  to  say,  to- 
tis  viribus  contra,  "  Go  not  with  a  multitude  to  do  evil,"  is 
a  maxim  ;  and  it  ought  to  be  the  same,  go  not  witn  a  multi- 
tude in  thinking  wrong. 

These  observations  are  not  made  for  the  sake  of  the  judg- 
es of  the  supreme  court ;  for  I  have  no  idea  that  they  will 
ever  read  them  ;  or  perhaps  come  to  hear  of  them  ;  but  cer- 
tainly will  not  be  disposed  to  pay  much  regard  to  them. 
But  it  is  for  the  sake  of  the  student  who  may  become  a  judge, 
that  I  give  the  hint.  The  fact  is,  I  have  been  always  dissa- 
tisfied with  the  apology, "  it  is  my  misfortune  to  dissent,"  &c. 
Sec.  &c.  and,  this,  in  so  severe  and  stern  a  situation  as  the 
administration  of  justice.  Will  not  the  by-standing  suitor  feel 
a  degree  of  indignation  in  hearing  such  declaration  of  "  mis- 
fortune to  dissent  .^"  For,  it  must  be  the  language  of  his 
mind,  "  it  is  not  your  misfortune ;  it  is  to  your  credit ;  and 
it  is  your  good  fortune,  to  have  the  good  sense  to  differ; 
and  so  far  from  softening  the  matter  out  of  deference  to  your 
brethren,  you  ought,  or  at  least,  it  would  have  pleased  me 
better,  to  have  given  your  words  the  implication  of  some 
dissatisfaction  at  the  error  of  the  judgment  of  the  majority. 
Not,  as  the  expression  would  import,  that  you  have  had 
qualms  in  dissenting,  which  only  arise  from  some  apprehen- 
sion, not  so  much  of  your  own  error,  as  of  their  displeasure. 
The  fear  of  man  bring-eth  a  snare.'*'' 


Law  Miscellanies.  077 


Hepburn  and  Dundas  v.  Colin  Auld.     5  Cranch,  262. 

JUDGE  Livingston,  in  page  273,  expresses  himself  in 
a  very  manly  manner.     I  concur  with  his  observations. 

Livingston,  J.  expressed  his  non-concurrence  in  the  reason- 
ing of  the  court,  in  the  latter  part  of  the  opinion  just  delivered 
by  the  chief  justice.  He  would  dismiss  the  bill,  even  if  a  good 
title  could  now  be  given  by  the  complainants.  This  court  can  no 
more  dispense  with  punctuality  as  to  time  in  any  case,  than  with 
any  other  part  of  the  agreement.  But  in  this  particular  case, 
time  was  of  the  essence  of  the  contract.  The  object  was  payment 
of  a  debt ;  and  from  the  anxiety  of  the  defendant  to  resist  a  decree 
for  a  conveyance,  and  the  desire  of  the  complainants  to  urge  it 
upon  him,  it  is  to  be  presumed  that  the  lands  have  fallen  in  value 
during  this  delay  of  the  title.  The  remedy  by  a  decree  for  a  spe- 
cific performance  is  a  departure  from  common  law,  and  ought  to 
be  granted  only  in  cases  where  the  party  who  seeks  it  has  strictly 
entitled  himself  to  it.  It  is  said  that  by  the  English  authorities, 
the  lapse  of  time  may  be  disregarded  in  equity,  in  decreeing  a 
specific  execution  of  a  contract  for  land.  But  there  is  a  vast  dif- 
ference between  contracts  for  land  in  that  country  and  in  this. 
There  the  lands  have  a  known,  fixed,  and  stable  value.  Here  the 
price  is  continually  fluctuating  and  uncertain.  A  single  day  often 
makes  a  great  difference  ;  and  in  almost  every  case  time  is  a  very 
material  circumstance. 

He  dissented  also  from  another  part  of  the  opinion,  which  inti- 
mates that  if  this  were  simply  a  deficiency  of  a  few  hundred  acres, 
it  would  be  considered  as  a  case  of  compensation.  This  part  of 
the  opinion  does  not  seem  to  be  necessary,  and  does  not  affect  the 
present  case  ;  but  this  court  can  in  no  case  compel  a  specific  per- 
formance on  terms  and  conditions.  We  cannot  decree  a  special 
execution  for  p^rt,  and  assess  damages  as  to  the  residue. 

This  is  like  a  contract  for  5,000  bushels  of  wheat.  A  tender  of 
4,5©0  would  not  be  good ;  and  we  coukl  not  compel  the  purcha- 
sei*  to  take  a  less  quantity  than  he  contracted  for.  So  here  the 
contract  was  for  6,000  acres.  The  complainants  have  a  title  to  a 
part  only  ;  we  could  not  compel  the  defendant  to  take  that  part, 
and  give  him  damages  for  the  non-conveyance  of  the  residue. 

3  B 


3TB  Law  Miscellanies. 


The  United  States  v.  Evans.     5  Cranch,  280. 

IT  will  not  be  inferred  that  I  approve  of  all  the  decisions 
of  the  supreme  court,  which  I  have  not  noticed.  Of  some  I 
do  approve ;  others  I  4iave  not  considered  so  fully  as  to 
have  an  opinion  concerning  them.  I  have  taken  notice  only 
of  such  as  struck  me,  en  passant,  as  exceptionable.  Amongst 
these  I  put  down  that  of  the  United  States  v.  Evans,  It  was 
a  writ  of  error  to  the  district  court  for  the  Kentucky  district. 

In  the  court  below,  the  judge  at  the  trial  rejected  certain 
testimony  which  was  offered  by  the  attorney  for  the  United 
States,  who,  thereupon  took  a  bill  of  exceptions,  and  became 
w#n  suit ;  and,  afterwards  at  the  same  term,  moved  the  court 
to  set  aside  the  non  suit,  and  grant  a  new  trial,  upon  the 
ground  that  the  judge  had  erred  in  rejecting  the  testimony ; 
but,  the  court  overruled  the  motion,  and  refused  anew  trial; 
whereupon  the  attorney  for  the  United  States  sued  out  his 
writ  of  error.  By  the  court,  "  where  there  has  been  a  non 
suity  and  a  motion  to  reinstate  overruled,  the  court  cannot 
interfere." 

If  the  writ  of  error  had  been  brought  on  the  motion  which 
had  been  overruled,  I  grant,  the  supreme  court  were  right 
in  not  sustaining  it.  But  I  should  infer  that  the  writ  of  er- 
ror was  brought  on  the  non  suit,  and  not  upon  the  tnotion  to 
set  it  aside. 

But  the  non  suit  was  suffered ;  it  was  voluntary.  It  was 
voluntary  by  compulsion,  as  the  British  make  their  fencibles. 
It  was  the  rejection  of  the  testimony  by  the  court  which  oc- 
casioned it,  and  compelled,  in  its  consequence,  the  suffering 
a  non  suit.  Non  suit  is  a  judgment  of  the  court,  where  it  is 
ordered,  or  directed;  and  it  amounts  to  the  same  thing  where 
the  suffering  it,  is  a  consequence  of  overruling  testimony, 
without  which  the  party  cannot  go  on  to  the  jury  with  a  pros- 
pect of  success  in  supporting  his  action.  That  a  court  can 
direct  a  non  suit  where  there  is  no  testimony^  volente,  no- 
lente,  the  party,  is  abundantly  to  be  deduced  from  the  Eng- 
lish practice ;  or  if  not  from  that  practice,  it  is  abundantly 
established  from   principle    in    cases  in  the    "  Constitution- 


Lawt  Miscellanies.  or9 

al  court  of  errors  and  appeals,  South  Carolina,  reported  2 
Bay,  133,  187,437,  Edanus  Burke,  President;  himself  an 
host;  ipse  agmen.  I  cannot  cite  myself  for  an  authority^  but 
I  can  cite  my  reasoning-,  in  r  case,  ut  valeat  quantum  valere 
potest;  and,  on  this  head  I  refer  to  5  Binney,  319. 

Taking  it  that  the  party  could  refuse  a  non  suit,  that  is 
to  suffer  it,  when  the  court  rejected  testimony,  what  remained 
to  be  done,  but  to  go  through  the  form  of  taking  a  verdict 
which  must,  in  that  case,  of  necessity  be  against  him,  and 
then  on  a  judgment  for  the  defendant,  to  bring  his  writ  of 
error,  and  assign  the  rejection  of  the  evidence  as  the  error 
which  had  been  the  cause  of  the  finding  by  the  jury?  But, 
on  principle,  the  non  suit  in  consequence  of  a  rejection  of 
evidence,  is  the  court's  act.  It  is  their  judgment,  and  re- 
fusing to  take  off  the  non  suit,  leaves  the  matter  just  where 
it  was ;  it  can  do  no  harm,  if  it  has  done  no  good,  to  have 
made  the  motion. 

These  matters  are  amongst  the  minutife  of  practice  ;  and 
I  do  not  at  all  wonder  that  the  judges  of  the  supreme  court 
having  their  minds  intent  upon  great  objects,  and  principles 
oi  general  laxu,  a  matter  of  minute  practice  should  appear  not 
to  have  been  examined  ;  but  overlooked  in  a  particular  case; 
I  should  be  surprized  to  find  it  otherwise.  The  proboscis 
of  an  elephant  cannot  take  up  a  needle,  though  it  can  involve 
the  trunk  of  a  tree  and  bear  it  down.  It  is  one  of  the  most 
difficult  things  in  the  profession  of  the  law,  to  acquire  a 
knowledge  of  the  smaller  rules,  and  the  reason  of  them — 
Non  equidem  invideo,  miror  majus 

I  am  astonished  that  the  judges  of  the  superior  court  having 
so  extensive  a  province  of  legal  examination,  can  contract 
their  minds  at  all  to  a  thing  that  lies  in  a  nut-shell ;  in  other 
words,  can  make  out  so  well  as  they  do  in  subordinate  ques- 
tions. That  they  have  erred  in  local  questions,  has  been  ob- 
served by  professional  men  from  other  states,  so  far  as  I 
have  had  an  opportunity  of  conversing  with  them.  But  no- 
thing is  inferred,  detracting  from  the  reputation  of  their  na- 
tural powers,  or  acquired  talents;  but  the  impracticability 


«38d  Law  Miscellanies. 

of  being  competent  to  every  thing  that;  under  such  exten- 
sive system,  it  becomes  necessary  for  them  to  decide  upon. 
"  Non  omnia  possumus,  omnes." 

Another  consideration  is,  the  judges  of  the  supreme  court 
have  not  time  to  read ;  commensurate  with  the  occasion  for  it. 
They  are  half  their  time  carted  in  stages,  or  running  in  cur- 
ricleSy  from  the  one  end  of  the  continent  to  the  other ;  and 
how  c'^n  they  have  time  to  read  ? 

It  is  the  same  thing  with  the  judges  of  this  state  as  to  the 
riding,  and  the  constant  employment  of  their  time ;  I  mean 
as  to  the  judges  of  the  supreme  court,  and  perhaps,  in  some 
degree,  to  all  the  others ;  to  some  of  them  I  know  it  applies, 
the  judges  of  the  mountainous  districts  ;  and  still  I  find  I 
must  explain  myself,  or  strike  out  stages  and  curricles^  so 
far  as  respects  the  judges  of  the  mountain  districts.  For 
the  roads  are  such  that  neither  stages,  nor  curricles  can  run. 

But  as  to  judges  of  our  supreme  court,  were  it  not  that 
we  are  confined  to  matters  of  a  small  compass^  our  time  being 
so  much  employed,  we  could  not  have  leisure  to  read,  what 
under  other  circumstances,  might  be  necessary  for  our  sta- 
tion. In  all  mouse-trap  matters,  as  they  may  be  called,  we 
do  pretty  well,  so  far  as  I  can  infer  from  the  not  hearing- 
much  complaint  from  the  profession,  or  the  people. 


O'Neal  V.  Thornton.  6  Cranch,  53- 

THE  judgment  of  the  circuit  court  of  the  district  of  Co- 
lumbia, was  in  this  case  reversed  by  the  supreme  court.  In 
that  case  was  introduced  the  construction  of  an  act  of  Mary- 
land, which  authorized  a  re-sale  of  lots  in  the  city  oj  Wash- 
ington., as  often  as  default  should  be  made  by  any  purchaser. 
The  court  below  had  been  of  opinion,  that  the  right  to  resell 
was  co-extensive  with  the  original  power  to  sell ;  that  every 
sale  was  a  nexv  sale,  and  within  the  statute ;  that  the  terms, 
*■'-  new  sale  ^^^  ^*-  frst  contract  "  ^''  original  purchaser,''^  ^'■second 
sale^^  and  first  purchaser,  are  all  relative  terms  ;  that  the  ex- 


Law  Miscellanies.  581 

pression  in  the  second  section  of  the  act  was  extensive 
enough  to  comprehend  all  the  re-sales.  It  was,  "  that  on 
sales  of  lots  in  the  said  city  by  the  said  commissioners, 
under  terms,  or  conditions  of  payment  being  made  at  a  fu- 
ture day,  &c.  and,  if  the  purchase  money  should  not  be  paid, 
&c.  the  commissioners  might  sell  the  same  lots  at  vendue," 
&c.  That  sales  of  lots,  means  on  aiii/  sales  of  lots  ;  that  a 
re-sale  was  as  much  a  sale  as  the  original  sales  ;  that  the  act 
meant  to  give  the  commissioners  the  same  right  as  to  the 
sales  of  lots,  which  a  vendor  of  personal  property  has  in 
England ;  which  is,  that,  "  if  the  purchaser  does  not  pay  for 
the  goods  on  the  day  stipulated,  the  vendor  may  sell  them 
again  at  the  risk  of  the  first  vendee." 

The  supreme  court  were  of  opinion  "  that  a  single  re-sale 
only  was  contemplated  by  the  legislature  ;  and,  that  by  such 
re'Sale.,  the  power  given  by  that  act  is  exercised."  That  is, 
that  by  a  single  execution  of  the  power,  the  commissioners 
became  functi  officio  ;  notwithstanding,  a  default  of  pay- 
ment at  the  re-sale  would  produce  the  same  necessity  for  a 
re-re-sale,  that  there  had  been  for  a  re-sale. 

A  strict  adherence  to  the  letter  of  an  authority,  would, 
in  human  affairs,  be  vexatious,  and  would  require  such  spe- 
cifications and  distinction  in  the  mandate,  as  would  embar- 
rass all  ordinary  transactions  ;  and,  even  in  the  highest, 
would  lead  to  great  inconvenience.  To  give  an  instance,  in 
an  ordinary  transaction,  I  take  one  from  the  Jest  book,  Liber 
Facetiarum,  where  the  master  directed  his  servant  to  bring 
him  a  fish,  which  he  did,  but  brought  it  as  it  was,  without 
having  undergone  any  process  of  cookery.  Boil  it,  said  the 
master,  and  bring  it.  This  the  servant  did,  but  brought  it 
in  his  hand.  Whatever  you  bring  me  again,  said  the  mas- 
ter to  his  new  valet,  who  was  a  simple  Scotchman,  whatever 
you  bring  me  again,  said  he,  put  a  plate  under  it.  In  the 
evening  calling  for  his  slippers,  the  servant,  sticking  to  the 
strict  letter  of  what  had  been  directed,  brought  them  on  a 
plate. 

But,  to  give  an  illustration  more  directly  applicable,  the 
construction  of  the  court,  as  to  a  single  performance  of  an 


382  Law  JMistiELLAKits. 

act,  is,  as  if  a  master  had  ordered  his  servant  to  mount  his 
liorse,  and  ride  him ;  and  the  servant  had  done  so,  but  hav- 
ing been  dismounted  by  some  accident,  he  would  not  consi- 
der himself  warranted  in  rc-mounting-^  without  a  new  instruc- 
tion. The  toiies  quoties  he  might  say,  was  not  within  the 
letter  of  what  he  had  been  directed  to  do. 

BUickstone  in  his  commentaries,  speaks  of  the  suUenness  ; 
or  affected  timidity  of  English  judges,  in  the  narrojvness  of 
their  constructiou  of  powers  given.     I  do  not  apply  this  to 
the  honourable  the  supreme  court ;  because  I  can  easily  see 
how  they  were  misled  in  the  construction  put  upon  the  act. 
It  was  by   the  equivoke  of  the  word  purchaser.     He   is   a 
purchaser  who  bids\   but  he  is  more  a  purchaser  who  pays. 
All  the  intermediate  biddings,  between  the  '■''Jirst  contract^"* 
and  the  last,    upon  which  the  money  is  paid,  pass  for  no- 
thing, and  ought  to  have  been  thrown  out  of  view  in  the  con- 
sideration of  the  case.     All  these  biddings  were  ?i  frauds  and 
the  striking  off  ought  not  to  have  been  spoken  of  as  a  sale  at 
all ;  nor  ought  the  bidders  and  note  givers  to  have  been  call- 
ed purchasers.     They  were  speculators,  swindlers,  or  what 
else  name  they  might  deserve;  but  they  could  not  be  called 
purchasers.     What  though  a  note  was  given  ?  If  forged,  or 
the  maker  or  person  on  whom  drawn  insolvent ;   for  it  dif- 
fers not  as  to  the  vendor ;    it  amounted  to  no  consideration 
paid  ;  and  if  not  a  fraud  in  fact,  was  a  fraud  in  law.     In  such 
a  case,  a  great  national  object,  the  sale  of  lots  with  a  view  to 
raise  funds  for  the  public  buildings  of  the  city,  in  order  to  ac- 
commodate the  national  legislature,  and  the  officers  of  govern- 
ment,  a  liberal  construction  of  an  act ;  an  amplitude  ought 
to  hare  been  given  to  it,  as  being  an  extraordinary  case,  and 
distinguishable  from  those  to  which  general  rules  would  ap- 
ply.    But  even  considering   it  a  case,  where  only  A  and  B 
were    concerned  on   a  private  contract,    I  should  think   the 
construction  and  reasoning  of  the  supreme  court,  as  to  this 
f  rroneous.     But  as  to  another  point. 

This  was  an  action  of  assumpsit  upon  a  promissory  note, 
"'  given  by  O'Nealc  tj  Thornton,  surviving  commissioner 
of  the  city  of  Washington,  for  the  money  of  lots  No.  1  and 


Law  Miscellanies.  38C 

2.  The  defence  was,  that  there  was  no  consideration  for  the 
note,  inasmuch  as  the  superintendant  for  the  city,  &c.  had 
abandoned,  or  rescinded  the  contract  of  sale,  by  having  sold, 
and  conveyed  the  same  lots  to  another  person  in  fee  simple." 
I  will  acknowledge  that  whether  this  sale  to  another  per- 
son, was  valid,  or  not  valid,  the  surviving  commissioner 
Thornton,  to  whom  the  superintendant  had  succeeded,  was 
concluded  from  a  recovery  on  the  note,  having  parted  with  the 
legal  title  to  another  person,  and  it  did  not  lie  in  his  mouth  to 
say  that  this  re-sale  was  not  valid.  But  the  court  unnecessa- 
rily introduce,  in  the  opinion  delivered,  a  principle  of  great 
importance,  and,  in  which  I  conceive  them  to  have  erred i 
viz.  that  this  sale  to  another  person  was  not  valid^  because 
it  was  not  a  re-sale^  but  a  re-re-sale.  The  original^  and  first 
sflle  had  been  to  Morris  and  Greenleaf.  It  is  admitted  by 
the  court  that  the  re-sale  was  valid.  Why  not  the  re-re-sale  ? 
Because,  say  they,  the  power  given  under  the  act  of  Mary- 
land was  functus  officio^  upon  the  re-sale.  This  all  turns 
upon  the  equivoke  of  the  word  purchaser^  in  the  act.  He 
cannot  be  considered  as  having  purchased,  or  being  really  a 
purchaser  within  the  meaning  of  the  act,  who  does  not  com- 
ply with  his  undertaking,  and  pay  the  money.  The  term 
purchaser,  may  apply  to  the  original  bidder,  because  he  paid 
som'e  money,  and,  to  a  certain  extent,  complied  with  the 
contract.  But  the  intermediate  bidders,  who  had  paid  no- 
thing, were  not  in  the  understanding  of  the  act,  or  on  any 
principle  of  law  to  be  considered  purchasers,  but  bafflers ; 
or  to  use  the  Saxon  term,  brockers,  at  the  sales.  Had  there 
been  a  thousand  of  these  they  would  be  laid  out  of  the  case  ; 
and  even  though  they  had  given  notes,  and  not  paying  at  the 
day,  the  commissioners  had  a  right  to  treat  their  pretence  of 
purchasing  as  a  nullity,  and  toties  quoties,  to  set  up  again. 
What  the  commissioners,  or  the  superintendant,  in  their 
places  had  a  right  to  do,  in  equity,  or  what  a  court  of  chance- 
ry, would  have  decreed,  they  might  do,  the  act  of  Maryland, 
exercising  a  cliancery  discretion,  sanctioned,  or  prescribed 
the  being  done.  It  was  a  stepping  out  of  the  ordinary  course 
of  legal  remedy   by  the-  legislature  of  Maryland;  but  it  vras 


G84  Law  Miscellanies. 

doing  no  more  than  might  be  done  by  an  ejectment  at  com- 
mon law  to  compel  payment,  or  what  a  court  of  chancery 
would  do  in  order  to  reach  the  same  object.  The  exigency  ; 
the  great  national  object  justified  the  festinum  remedium  of 
an  interposition.  It  would  seem  to  me  to  be  taking  a  narrow 
view  of  the  power  given  by  the  act  to  confine  it  to  any  thing 
short  of  a  sale  that  would  raise  the  money.  The  mere  let' 
ter  of  terms  was  not  to  be  considered,  but  the  substantial 
meaning  and  intendment  of  the  act;  and  I  would  not  consi- 
der the  power  as  functus  officio,  until  a  real  purchaser  was 
found,  who  would  pay  the  money.  I  think  it  the  more  unfor- 
tunate that  this  construction  did  not  take  place,  inasmuch  as 
it  was  of  great  moment  for  the  city  of  Washington,  that  the 
original  object  of  the  sales  should  be  accomplished,  the 
erecting  public  buildings,  &c.  and  also  for  the  purpose  of 
settling  titles  for  lots  that  these  might  be  built  upon,  with 
safety  by  the  real  purchasers.  The  improvement  of  the 
city  in  all  respects  depended  upon  this. 

I  was  led  to  consider  this  act  the  more,  as  a  case  was 
lately  tried  before  me,  at  nisi  prius,  Philadelphia  county, 
in  which  the  case  of  a  sale  and  re-sale,  and  re-re-sale  of  some 
of  these  lots  came  into  view.  It  was  an  action  on  a  bond 
given  in  consideration  of  a  sale,  or  re-sale,  or  re-re-sale,  for 
it  made  no  difference  with  me,  of  some  of  these  lots.  The 
constitutional  power  of  the  state  of  Maryland  to  pass  such 
an  act  was  questioned,  as  being,  in  the  first  place,  an  act  to 
hnba'ir  contracts^  and  in  the  case  before  us,  an  ex  post  facto 
law.  I  was  of  opinion  that  an  act  to  hang  these  speculators 
would  have  been  in  the  natuie  of  an  ex  post  facto  law  ,•  for 
what  they  had  done,  was  done  before  the  act  passed.  But 
that  as  to  impairing  contracts,  there  was  a  wide  difference 
between  annulling  a  contract,  and  giving  a  remedy  to  en- 
force compliance  with  it.  This  a  court  of  chancery  will  al- 
ways do.     There  was  nothing  more,  done  in  this  case. 


Law  Miscellanies.  285 

The  Chesapeake  Insurance  Company  v.  Stark,  6  Cranch,  268. 

THIS  was  error  to  the  circuit  court  of  the  district  of 
Maryland.  The  action  was,  covenant  upon  a  policy  of  in- 
surance of  goods,  &c.  Defence,  amongst  other  things,  that 
the  abandonment  was  not  in  due  time. 

Special  verdict  finding  the  facts.  Marshall,  chief  justice, 
delivered  the  opinion  of  the  court ;  and  after  observatioiis 
on  what  did  not  so  immediately  affect,  goes  on  to  say, 

"  The  only  point  which  presents  any  difficulty  in  the  opinion  of 
the  court,  is  the  objection  founded  on  the  omission,  in  the  verdict, 
to  find  that  the  abandonment  was  made  in  reasonable  time. 

The  law  is  settled  that  an  abandonment,  to  be  eftectual,  must 
be  made  m  reasonable  time  ;  but  what  time  is  reasonable  is  a  ques- 
tion compounded  of  fact  and  law,  which  has  not  yet  been  reduced 
to  such  certainty  as  to  enable  the  court  to  pronovmce  upon  it,  with- 
out the  aid  of  a  jury.  Certainly  the  delay  may  be  so  great  as  to 
enable  every  man  to  declare,  without  hesitation,  that  it  is  unrea- 
sonable, or  the  abandonment  may  be  so  immediate,  that  all  will  ad- 
mit it  to  have  been  made  in  reasonable  time :  but  there  may  be 
such  a  medium  between  these  extremes,  as  to  render  it  doubtful 
whether  the  delay  has  been  reasonable  or  othei-wise.  If  it  was  a, 
mere  question  of  law  which  the  court  might  decide,  then  the  lav.' 
would  determine,  to  a  day  or  an  hour,  on  the  time  left  for  delibera- 
tion, after  receiving  notice  of  the  loss.  But  the  law  has  not  so  de- 
termined, and  it  therefore  remains  a  question  compounded  of  fact 
and  law,  which  must  be  found  by  a  jury  under  the  direction  of  the 
court. 

In  this  case  the  jury  have  found  an  abandonment,  but  have  not 
found  whether  it  was  made  in  tlue  lime  or  otherwise.  The  fact  is, 
therefore,  found  defectively  ;  and  for  that  reason  a  -venire  facias  di 
novo  must  be  awarded. 

It  may  not  be  amiss  to  remark  that  the  judicial  opinions  whicli 
we  generally  find  in  the  books,  on  these  subjects,  are  usually  given 
by  way  of  instruction  to  the  jury,  or,  on  a  motion  for  a  new  trial,  not 
on  special  verdicts.  The  distinction  between  the  cases  deserves 
consideration." 

The  facts  being  found  by  the  special  verdict^  if  a  question 
oflaw^  could  not  the  court  say  what  was  the  law  -arising 
from   these    facts?      If  a  conclusion    of   reasonable    time 

3  C 


33G  Law  Miscellanies. 

from  the  facts  must  be  drawn  by  the  jury,  in  a  special  ver- 
dict, it  is  a  conclusion  of  fact,  and  not  of  law.  What 
had  the  court  to  do  with  it,  if  a  question  of  fact  solely  ? 
They  have  a  right  to  assist  the  jury  in  weighing  the  evi- 
dence, and  the  power  to  set  aside  the  verdict  if  against  the 
weight  of  it.  But  this  does  not  make  it  a  question  com- 
pounded of  law,  and  fact,  if  there  could  be  such  a  compound. 
Strictly  speaking,  we  might  as  well  talk  of  a  compound  of  co- 
lour and  sound ;  things  judged  of  by  different  senses ;  anJ 
which  cannot  be  compounded. 

But  there  is  a  conclusion  oifact  from  facts  ;  and  a  con- 
clusion of  law  from  that  fact.  As  for  instance,  1  and  1  make 
2,  which  are  two  facts,  making  one.  But  2  and  2  make  4, 
which  is  a  conclusion  of  y(7c#  from  facts. 

Again  1  and  1  make  2,  which  is  a  fact ;  but  two  are  ne- 
cessary to  constitute  a  conspiracy,  which  is  a  conclusion  of 
law  :  three  to  make  a  riot,  which  is  a  conclusion  of  law  also. 
So,  whether  an  entry  with  force  and  arms,  is  an  indictable 
offence,  or  a. trespass  merely,  is  a  question  of  law.  So  that 
strictly  speaking  it  is  not  a  compound  question,  but  two  ques- 
tions of  a  different  nature,  and  one  of  which  must  be  resolv- 
ed before  the  other.  If  the  question  is  put  to  the  jury, 
they  must  resolve  the  question  of  fact  first,  in  their  own 
minds,  in  the  older  of  resolving,  and  then  draw  the  conclu- 
sion of  law,  which,  if  they  find  a  general  verdict,  they 
must  draw.  If  they  give  a  special  verdict,  which  in  all  cases 
they  may  do,  they  draw  the  conclusion  of  fact  only,  and  need 
not  go  onto  resolve  the  other  question,  viz.  what  is  the  laxv 
thence  arising  ?  But  it  is  but  one  question  at  a  time,  they 
can  resolve,  and  therefore  the  question  is  not  compound: 
save  so  far,  as,  that  where  the  jury  gives  a  general  verdict, 
they  solve  both  questions  at  the  same  time  and  by  one 
answer.  This  has  been  the  result  of  my  investigation  when 
I  have  endeavoured  to  analize,  and  ascertain  what  could  be 
meant  by  a  compound  question. 

But  in  the  case  before  us,  that  an  abandonment  must  he 
made,  to  entitle  to  recover,  is  a  question  of  law.  That  an 
abandonment  must  be  made  in  reasonable  time  is  a  qikestion  of 
law-     But  the  jury  having  found  the  time,\%  it  a  question  ot 


Law  Miscellanies.  387 

Ia\^  or  fact,  to  draw  the  conclusion,  and  to  say,  whether  or 
not  that  time  was  reasonable  P  The  court  say  it  is  a  conclu-» 
sion  of  law,  why  not  then  draw  it?  why  reverse  the  judg- 
ment, and  send  it  back  to  a  jury,  with  costs,  and  the  expence 
of  a  new  trial  ?  There  appears  to  me  an  incoJisistency  in  the 
proceeding. 

If,  as  the  chief  justice  lays  it  down  in  another  case,  6 
Cranch,  339,  "  that  what  is  reasonable  time  for  abandonment, 
is  a  question  compounded  of  fact  and  law,  ofiohich  the  jury 
must  judge  under  the  direction  of  a  court^^''  it  is  the  only  case 
that  occurs  to  me  where  a  reference  to  a  distinct  forum,  can- 
not be  had  J  the  jury  finding  the  fact ^  and  leaving  the  laiv 
to  the  cow  t. 

Reasonable  time,  in  the  ease  of  an  abandonment,  and  m 
that  of  a  bill  of  exchange,  or  in  any  other  case,  must  be  the 
same.  In  the  case  of  a  bill  of  exchange,  the  jury  in  a  special 
verdict  finding  the  time,  will  not  the  court  in  England,  as  a 
question  of  law,  draw  the  conclusion  ?  If  the  jury  must  do  it 
as  a  conclusion  of  fact,  what  have  the  court  to  do  ?  What 
direction  could  a  judge  on  the  trial  give,  but  that  if  you  find 
so,  and  so,  then,  in  our  opinion  reasonable  time  had  passed. 
"When  the  jury  have  found  so,  and  so,  cannot  the  court  say  rea- 
sonable time  had  passed  within  whicli  an  abandonment  ought 
to  have  been  made.  This,  considering  it  a  question  of  law, 
and  not  of  fact,  as  the  court  have  laid  it  down. 


Notes  relative  to  Judge  Tucker's  Commentaiy  on  the  Constitu-< 
tion  of  the  United  States,  Sec. 

I  HAVE  not  entered  into  an  examination  how  far  the 
constitutio7i  of  the  United  States,  and  the  acts  of  congress 
under  it  have  wrought  a  variation  in  the  jurisprudence  of  the 
state  of  Pennsylvania,  from  the  law  of  England.  And  this,  not 
only  because  such  operation  has  not  an  eflfect  peculiar  to  this 
state;  but  also  because^wc/^e  Tucker,  has  noticed  abundantly, 
what  might  be  said  on  this  head.  The  code  of  each  state,  so  as 
it  is  affected  by  the  constitution,  or  an  act  of  congress,  is  lex 


o88  Law  JMiscellamls^ 

sub  graviore  lege,  subject  to  a  higher  law  ;  and  must,  so  far 
as  it  goes,  be  changed  by  it.  This  observation  is  to  be  un- 
derstood as  going  no  farther  than  acts  of  congress  within 
the  outward  groove  or  orbit  of  the  constitution.  I  cannot 
say  that  I  have  examined  minutely  the  valuable  commen- 
taries of  that  civilian,  so  as  to  be  able  to  point  out  mistakes, 
if  any  had  occurred  to  me  ;  but  a  learned  jurist  has  given 
me  a  note  of  a  few  oversights,  or  miscontructions,  as  they  ap- 
peared to  him,  which  are  to  be  met  with  in  the  comments  of 
judge  Tucker,  in  his  view  of  the  constitution  of  the  United 
States.  If  this  publication,  which  is  not  very  probable,  should 
at  any  time  reach  the  notice  of  that  judge,  he  will  not  be  dis- 
pleased with  having  it  suggested  to  him,  that  he  might  reconsi- 
der. It  is  well  known  that  judge  Blackstone  availed  himself  of 
the  observations  of  others,  Junius,  Priestly,  Furneau,  &c.  to 
change  some  things  that  had  been  given  in  the  first  edition  of 
his  commentaries ;  and  many  alterations  have  been  made 
which  would  appear  to  have  occurred  to  his  own  reflection.  I 
could  point  out  one  particular  of  law,  which  he  had  stated 
so  equivocally  in  the  first  edition,  as  to  mislead;  but  which 
in  his  later  editions  he  has  corrected.  It  occurs  2  Com.  252. 
Treating  of  the  qualified  property  of  the  bailor  and  bailee, 
'*  may  all  of  them  vindicate,  says  he,  in  their  own  right,  this 
their  possessortj  interest  against  any  stranger  or  third  per- 
son, according  to  their  respective  interests.''^  I  have  known 
very  learned  counsel  to  contend  from  this  authority,  that 
neither  of  them  could  recover  otherwise  than  according  to 
their  respective  interests.  It  would  seem  to  have  occurred 
to  the  commentator  that  it  was  equivocal,  and  he  has  struck 
out  the  expression,  "  according  to  their  respective  inter- 
ests:' 

Comparing  small  things  with  great,  if  it  might  be  allow- 
able to  mention  what  I  have  written,  there  will  be  inaccu- 
racies which  may  occur  to  myself,  and  much  more  to  the 
learned  of  the  profession  in  the  matters  of  this  publication, 
which  I  will  have  no  pride  to  oppose,  but  the  contrary,  in 
hearing  of  them  being  pointed  out.  The  only  considera- 
tion is,  or  rather y^ar,  that  not  many  learned  in  the  law,  and 
capable,  will  do  me  the  honour  to  examine  and  to  note  the 


Law  Miscellanies.  389 

observations  from  reason,  or  from  law,  which  may  exist. 
With  regard  to  the  commentaries  of  judge  Tucker,  on  the 
constitution  of  the  United  States,  &:c.  the  note  of  the  > learned 
jurist  is  as  follows. 

"  The  passages  in  Tucker's  Blackstoue  which  have  truck  me 
as  inaccurate,  are  the  following. 

Tucker's  Black,  vol.  1.  181.  The  author  states  the  cases  in 
which  he  thinks  that  the  judicial  power  of  the  United  States  is  ea- 
clusivelij  vested  in  the  tribunals  of  the  federal  government,  and 
enumerates  them  as  follows  : 

1 .  All  cases  affecting  ambassadors,  other  public  ministers  and 
consuls. 

Note.  This  does  not  seem  accurate,  for  an  ambassador,  &c. 
may  sue  in  the  state  courts  if  he  please,  though  he  may  not  be  swd 
there.     Therefore  the  power  is  not  entirely  exclusive. 

2.  All  cases  of  admii-alty  and  maritime  jurisdiclion. 

Note.  If  the  author  meant  all  cases  which  arc  exclus'roely  of 
admiralty  jurisdiction,  such  as  prize  and  its  incidents,  he  is  right, 
but  if  he  meant  all  cases  of  admiralty  jurisdiction  generally,  in- 
cluding bottomry,  mariner's  wages,  &c.  he  does  not  seem  correct, 
for  in  all  these  cases  there  is  a  remedy  at  the  common  law,  differ- 
ent in  its  form,  indeed,  and  sometimes  in  its  effects,  frona  admi- 
ralty process,  but  still  the  common  law  lakes  cognizance  of  the 
subject  matter,  and  the  jurisdiction  of  the  court  of  admiralty  in 
such  cases  is  even  scid  to  be  only  fierinissive^  and  ex  rei  necessi- 
tate et  favore  legis. 

3.  4.  5.  Seem  correct. 

6.  Controversies  to  which  the  United  States  are  a  party. 
Note.  There  appears  nothing  to  prevent  the  United  States 
from  sii'uig^  though  tiiey  may  not  be  sued  in  a  state  court,  nor  in- 
deed in  any  court,  directly,  and  indirectly  it  is  not  clear  that  they 
may  not  be  sued  through  their  officers  in  a  state  court ;  I  believe 
there  have  been  instances  (I  think,  in  New-York)  of  a  collector 
sued  in  a  state  court  for  torts  committed  under  colour  of  his  offi- 
cial duty.  Of  this,  however,  I  am  not  sure,  but  upon  the  whole, 
Mr.  Tucker's  assertion  seems  too  broad. 

Again  the  decision  of  the  chief  justice  on  the  habeas  corpus  in 
Blight's  case,  shews  that  state  courts  have  taken  cognizance  of 
controversies  to  which  the  United  States  are  real  parties ;  for 
Blight's  confinement  was  by  the  authority  of  a  federal  court,  and 
the  United  States,  or  what  is  the  same,  the  authority  of  its  judiciary 
was  clearly  involved." 


390  Law  Miscellamls. 


On  the  conbiruction  of  Art.  4.  Sec.  4.  of  the  Constitution  ot 
the  Unitqd  States. 

"The  United  States  jfAcr// guarantee  to  every  state  in  this 
union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion  ;  and,  on  application  of  the  legisla- 
ture^ or,  of  the  executive^  (when  the  legislature  cannot  be  con- 
vened) against  domestic  violence."  This  would  seem  to  be 
an  amplilication  of  the  power  given  to  congress  under  head 
15,  of  Sec.  8.  Article  1.  of  the  constitution,  viz.  "  to  pro- 
vide for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions."  Under 
article  1.  sec.  8. 15.  The  congress  shall  have  power  to  pro- 
vide for  calling  forth^  ^c.  Under  article  4.  sec.  4.  The 
United  States  shall  guarantee^  Sec.  The  first  gives  the  pow- 
er to  do ;  the  last  enjoins  the  doing  in  certain  cases,  which 
must,  in  substance^  fall  under  the  first  head,  at  least  so/ar  as 
respects  the  protecting  against  invasion  ;  and  against  domes- 
tic violence. 

But,  on  a  question  put  by  governor  Strong,  of  Massachu- 
setts, to  the  justices  of  the  supreme  court  of  that  state,  these 
justices  certified  an  opinion,  inter  alia,  that,  in  calling  forth 
the  militia, "  no  power  is  given  either  to  the  president,  or  to 
the  congress  to  determine  that  either  of  the  said  exigencies 
does  in  fact  exist."  Masachusetts  Reports,  449.  But  it 
would  seem  to  me  unavoidably  deducible,  from  sec.  4.  arti- 
cle 4,  that  there  is  but  one  case  where  it  is  left  to  the  legisla- 
ture, or,  to  the  executive,  where  it  cannot  be  convened,  to 
exercise  the  right  of  determining  as  to  the  exigency  in  which 
the  militia  may  be  called  forth,  and  that  is,  "  to  protect 
against  domestic  violence."  That  is  distinguishable  clearly 
in  section  4.  article  1,  from  the  guarantee  of  a  republican 
form  of  government,  and  protecting  against  invasion.  For, 
it  is  on  application,  See.  that  protection  against  domestic  via- 
Icnce  in  to  be  given.  The  other  cases  are  left  out  of  this 
clause,  and  precede  it,  and  there  is  no  application  in  such 
vases  specifitd.  The  justices  of  Massachusetts  would  there- 
fore, appeyr  to  me  to  be  erroneous  in  their  opinion,  that  the 


I 


Law  Miscellanies.  391 

president  or  congress  have  not  the  right  to  »juclge  of  the  exi- 
gency of  an  insurrection  or  invasie7i. 

Domestic  violence  is  distinguishable  from  an  insurrection 
to  resist  a  law  of  the  United  States.  It  may  be  in  opposi- 
tion to  a  law  of  the  state ;  or  it  may  be  a  great  riot  without 
a  specific  object,  but  bidding  fair  to  terminate  in  a  dissolu- 
tion of  the  government.  With  great  propriety,  it  is  left  in  this 
case  to  the  legislature,  or  executive  of  tlie  state  in  their  ab- 
sence, to  say  whether  such  an  exigence  exists^  as  calls  for  the 
arm  of  the  union.  But  if  the  violence  has  for  its  object,  a 
resistance  to  a  law  of  the  union,  how  shall  the  state  officially 
-know,  that  resistance  is  made.  It  must  be  communicated 
through  the  medium*of  the  general  governmeaty  to  whose  au- 
thority it  is  made  ;  and  does  not  this  involve  in  it,  necessari- 
ly ^  the  judging  of  the  exigency  ?  can  the  state  be  supposed  to 
have  a  negative  upon  this  judging,  and  to  say,  your  law  is  not 
resisted ;  you  have  raised  a  groundless  clamour  against 
these  insurgents,  and  they  may  go  without  day.  This  is  the 
law  phraseology,  when  a  complaint  is  dismissed  ;  and  the 
defendants  discharged  from  appearance. 

But  who  is  to  determine  the  exigency  when  a  republican 
form  of  government  is  about  to  be  put  down  in  a  particular 
state  ?  It  cannot  be  the  legislature,  or  the  executive,  even 
if  there  had  been  the  strongest  exclusion  as  to  this.  For  it 
must  be  a  case  where  a  republican  legislature  and  executive 
had  been  overthrown,  and  the  ojie  or  i\\tfexv  had  usurped  the 
government,  that  such  an  exigency  could  exist ;  and  it  would 
be  an  inconsistency  to  suppose  tliat  these  would  make  an  appli- 
cation for  the  arm  of  the  union  to  suppress  themselves. 

It  is  in  the  case  yf  domestic  violence  where  the  United 
States  are  not  supposed  to  know  of  the  outrage,  or  of  the  ne- 
cessity of  the  interposition  of  the  general  government,  that 
the  application  must  be  made,  by  the  legislature,  or  the  exe- 
cutive, of  the  particular  state.  The  necessity  of  interposi- 
tion must  be  judged  of  by  the  particular  state  ;  the 
Dignus  vindice  nodus. 

But  in  the  case  of  "  invasion  ;"  who  is  invaded  ?  Say 
'.t.il('     .Vr».   1 .  who   is  to  f'ivf    noino    i.f    (]-,is  rr>    '.rate    No.  2? 


>392  Law  Miscellanies. 

Must  it  not  come  through  the  medium  of  the  general  govern- 
ment to  No.  2  and  to  all  the  states  ?  Does  it  not  then  follow 
that  the  general  government,  so  far  as  respects  No.  2.  and 
all  the  rest,  is  to  determine,  M^hether  or  not,  the  exigency  ex- 
ists of  No.  1  being  invaded? 

But  admit  the  United  States  who  are  to  guarantee^  and 
protect^  &c.  have  a  right ;  and  must  of  necessity,  determine, 
in  the  first  instance,  whether  an  exigency  exists ;  yet  a  par- 
ticular state  has  a  negative  upon  that  determination,  and  may 
say,  it  does  not  exist.  If  so,  the  outer  -wheel  is  then  stopt  by  the 
cog-ivheel^  and  the  machine  can  no  longer  xvork.  It  is  assum- 
ing false  premises^  therefore,  in  the  Massachusetts'  justices 
to  say,  that  the  power  is  not  delegated  1,o  congress,  or  to  the 
president  to  determine  when  the  laws  of  the  union  are  resist- 
ed, insurrection  on  foot,  or  invasion  made. 

But  who  shall  command  the  militia,  in  case  of  their  be- 
ing called  forth  ?  The  president,  or  his  lieutenant,  doubt- 
less. In  this  capacity  Hamilton  acted  under  Washington^ 
in  repressing  the  insurrection  in  the  western  parts  of  Penn- 
sylvania, in  the  year  1794.  I  do  not  know  that  he  acted  un- 
der a  commission  eo  nomine,  but  de  facto,  I  saw  him  in  the 
exercise  of  that  command.  General  Lee  was  the  ostensible 
lieutenant. 

But  may  not  the  president  appoint  as  his  deputy ;  or,  suffer 
to  act,  the  officer  who  commands  the  regular  force  on  foot  at  the 
same  time  f  But  can  the  officers  of  the  lingular  force  on  foot, 
from  him  down,  be  substituted  in  the  command  of  the  mili- 
tia for  their  officers  ?  No;  there  is  no  necessity  for  it;  nor, 
can  it  lawfully  be  done. 

But  who  is  to  take  the  command  when  a  regular  force  is 
on  foot,  and  militia  embodied  at  the  same  time  ;  and  the 
president  is  not  present,  nor  has  he  any  deputy,  or  lieutenant 
to  command  for  him  ?  I  do  not  take  that  to  be  a  case  likely 
to  happen,  and  I  shall  not  enter  into  an  examination  of  it. 
My  mind  has  been  chiefly  intent  upon  the  other  questions. 

But  supposing  the  exigency  of  an  invasion  to  exist,  ac- 
cording to  the  deter7ninatio7i  of  the  congress  and  president^ 
atid  the  militia  are  called  forth  to  repel  invasion  ;  or  to  pro- 
tect against  it ;  (for  both  these  terms  are  used  in  the  const:- 


Law  MisGEtLANiEs,  393 

tution,  article  1,  the  term  '■^  repelling-  invasion^''  is  used. 
Article  4.  "  Protecting  against  invasion,  is  used.J  Can  the 
militia  he  ordered  beyond  the  boundary  of  the  United  States  ? 
That  will  depend  upon  the  question,  if  comnwn  sense  and  na- 
tural reason  is  to  determine  it,  which  of  the  two  means  will  be 
the  most  effectual  in  repelling  an  invasion,  or  protecting  against 
it ;  the  stopping  at  the  limits^  or  carrying  our  arms  into  the 
country  of  the  enemy*  Nations  usually  adopt  this  last  mode, 
because  it  saves  their  own  country  from  ravage,  and  it  is  more 
effectual  to  chace  a  fox  or  a  wolf  to  his  den,  even  though  it 
is  beyond  a  boundary,  than  to  wait  for  a  renewal  of  the  de- 
predations which  they  may  have  committed. 

But 

Here  take  notice,  that  I  have  heard  it  observed,  upon  close 
reasoning,  that  the  word   but^  frequently  occurs.    I  answer, 
that  the  course  of  reasoning,  on  any  subject,  is  syllogistic  ; 
and,  if  it  is  worth  any  thing,  cannot  but  in  the  nature  of  it, 
contain  a  syllogism;  and  though  there  is  no  major  or  minor 
formally  stated,  yet  all  course  of  reasoning  on  a  moral  sub- 
ject, must  partake  of  the  nature  of  a  demonstration  in  ma- 
thematics ;   and    postulate,  and   axiom   must  be   assumed ; 
look  at  Euclid,  and  you  will  see  a  but  at  every  new  step  that 
he  takes  in  building  up  his  structure.  In  Aristotle  the  same; 
first  principles   are   assumed,    and  what  is   deduced  from 
these,  forces  your  acknowledgment,  as  you  proceed,  until  the 
conclusion  is  wound  up.     I  was  proceeding  then  to  say,  Btitj 
•    Must  not  an  enemy  have   invaded,   before   you  can  be 
justified   in   passing    a  boundary  ?     To  put  the  case  in  the 
strongest  possible  manner,  let  it  be,  that  not  a  single  trespass 
has  been  yet  committed  in  any  quarter  of  the  territory.     For 
if  hostilities  have  been  committed  on  any  one  quarter,   it  is 
A  trespass  upon  the  whole.     I  say,  let  it  be,  that,  no  act  of 
hostility;  no  trespass,  has  been  committed,  by  land,   or  by 
water  ;  in  that  case,  can  it  be  allowable,  under  the  constitu- 
tion, to  carry  the  militia  beyond  the  boundary,  even  though 
it  may  appear,   and  actually   be,   the  most  effectual  way  to 
protect  against   Invasion  ?     In  strictness  of  terms,   it  may, 
perhaps,  be  said  not  to  come  under  the  head  of  repelling  an 

3D 


39i  Law  Miscellanies. 

invasion  ;  but,  certainly  it  may  come  under  the  head  of  pro'' 
tecting  against  it.  The  practice^  which  constitutes  the  laxu 
of  nations  will  illustrate  this.  When  an  enemy  is  about  to 
make  war,  or  invade,  when,  or  where  is  it  hesitated,  to  an- 
ticipate hostilities,  and  to  invade  ?  Among  pugilists,  the 
Jlrst  blotv  is  said  to  be  half  the  battle*  It  is  by  boarding  first i^ 
that  we  save  ourselves  from,  capture,  to  use  a  nautical  allusion, 
and  defend  the  ship,  when  oftentimes  by  no  other  means 
could  it  be  defended.  The  Romans  passed  over  into  Africa, 
to  defend  Italy,  and  to  save  Rome. 


NOTES  ON 
BLACKSTONE'S  COMMENTARIES,  8ic, 

SECOND  SERIES, 


•'  The  customs  of  London  arc  confirmed  by  an  act  of  Parlia- 
ment."    I  Bl.  Com.  75. 

THE  general  latv  of  England,  has  nothing  in  it,  of  the 
nature  of  our  attachment  law,  consisting  of  acts  of  assem- 
bly, and  the  adjudications  of  our  courts.  And  in  regard  of 
practice^  varies  essentially  from  that  under  the  custom  of 
London.  I  refer  the  student  to  a  treatise,  by  Thomas  Sear- 
geant,  on  the  attachment  law  of  our  state,  as  an  elementary 
tract,  which  would  do  credit  to  any  lawyer,  more  especially 
to  one  so  young  in  the  profession,  and  in  years.  It  is  inva- 
luable to  the  practising  lawyer  in  our  state ;  and,  I  should 
think,  must  be  to  those  of  other  states  who  have  attachment 
laws,  as  I  presume  all  have.  I  will  take  the  liberty  of  ex- 
tracting from  this  publication,  the  preface  to  his  work,  as  giv- 
ing some  view  of  the  object  of  this  very  elegant  and  classi- 
cal performance. 

"  The  principles  of  the  law  relative  to  foreign  attachment  are 
important  in  Pennsylvania,  not  only  from  its  frequent  recurrence 
in  practice,  but  from  the  circumstance  of  its  being  an  ex  parte 
proceeding,  and  therefore  requiring  to  be  conducted  with  regular- 
ity and  precision.  As  it  is  also  a  proceeding  against  absent  debtors, 
it  is  peculiarly  interesting  to  the  inhabitants  of  other  states,  who 
are  frequently  parties  concerned.  A  means,  therefore,  of  procur- 
ing information  on  this  subject,  although  a  branch  of  the  local  law 
of  the  state,  seems  calculated  to  be  generally  useful. 

"  Under  these  circumstances,  a  collection  of  the  laws  relative 
*o  foreign  attachment  appeared  to  be  desirable.     As  our  origin3-l 


596  Law  Miscellanies. 

acts  of  assembly,  relative  to  attachment,  were  borrowed  from  ihe 
custom  of  London,  and  do  not,  in  themselves,  form  an  entire  sys- 
tem, it  has  been  usual  to  resort  thither,  to  supply  and  illustrate 
them  :  and  a  system  no\v'  exists  hi  Pennsylvania  formed  partly 
from  the  custom  of  London,  and  yet  dilTering  from  it  in  many  im- 
portant particulars.  What  was  to  be  found  in  print  lay  dispersed  ; 
and  it  was  thought  to  be  useful,  if  nothing  more  could  be  done, 
at  least  to  bring  together  the  different  points  decided,  as  a  mfcans 
of  aiding  a  more  entire  view  of  the  law  upon  this  head,  than  can  at 
present  easily  be  obtained. 

"  This  has  been  attempted  in  the  present  treatise.  The  writer 
has  assiduously  sought  all  the  information  on  the  subject  that  was 
to  be  found  in  print,  and  has  obtained,  through  the  kindness  of  his 
friends,  some  few,  but  important  manuscript  cases.  In  addition  to 
these  he  has,  for  the  reason  before  stated,  introduced  most  of  the 
law  under  the  custom  of  London  ;  a  considerable  portion  of  which 
appeared  to  be  applicable  here ;  and  even  that  part  which  could  not 
be  so  considered,  tending  to  illustrate  the  grounds  and  reasons  of 
the  proceeding. 

"  He  has  felt  the  difficulty  attending  the  formation  of  an  elemen- 
tary work,  arising  from  the  paucity  of  our  own  decisions  on  the 
subject :  the  only  legitimate  sources,  from  which  the  interpreta- 
tion of  the  laws  can  be  derived  :  particularly  in  what  regards  the 
practice,  which  varies  essentially  from  that  under  the  custom  of 
London,  and  can  be  ti'aced  only  in  the  decisions  of  our  own  courts." 


«  Penal  statutes  must  be  construed  strictly."    I  Bl.  Com.  87. 

EXTRACT  from  Dodson's  life  of  Sir  Michael  Foster, 
published,  London,  1811. 

"Sir  John  Eardly  Wilmot,  late  lord  chief  justice  of  the  court 
of  common  pleas,  was  the  particular  friend  of  Mr,  Justice  Foster  : 
and  Mr.  Wilmot,  in  his  memoirs  of  his  very  justly  honoured 
father,  has  inserted  sonie  short  correspondence  on  legal  subjects 
between  these  friends,  and  spoken  of  Mr.  Justice  Foster  in  lan- 
guage significantly  descriptive  of  his  true  character.  Sir  Michael 
Foster  says  he  was  conspicuous,  not  only  for  his  knowledge  of  cri- 
minal law,  but  for  every  quality  of  an  urnght,  enlightened,  and 
flagacious  magistrate. 


Law  Miscellanies.  397 

"  Although  Sir  Michael  Foster  generally  concurred  in  opinion 
with  the  other  judges ;  yet,  on  several  important  questions,  he 
differed  from  some,  if  not  from  ail  of  the  judges.  A  remarkable 
instance  of  this  sort  occurred  in  the  case  of  John  Midwinter  and 
Richard  Sims,  who  was  tried  before  him  at  the  lent  assizes  for 
ihe  county  of  Gloucester,  in  1749,  for  unlawjulhj^  maliciously^  and 
feloniously  killing  a  mare.  Midwinter  was  foupd  guilty,  and  re- 
ceived sentence  of  death.  But  the  judge  having  doubts  as  to  the 
case  of  Sims,  the  jury,  by  his  direction,  found  a  special  verdict 
with  I'egard  to  him.  The  question  in  that  case  was,  whether  Sims, 
who  was  present,  aiding  and  abetting  Midwinter  in  killing  a  mare 
of  the  prosecutor,  was  ousted  of  the  benefit  of  clergy  by  the  statute 
9  G.  I.  chap.  22,  by  which  it  is  enacted,  "  that  if  any  person,  or 
persons,  shall  unlawfully  and  maliciously  kill,  maim,  or  wound 
any  cattle^  every  person  so  offending,  being  thereof  lawfully  con- 
victed, shall  be  adjudged  guilty  of  felony,  and  shall  suffer  death,  as 
in  cases  of  felony,  without  benefit  of  clergy."  Mr.  Justice  Fos- 
ter thought  that  Sims  was  a  felon,  and  a  principal  felon  ;  but  that, 
as  aiders  and  abettors  are  not  named,  nor  described  in  the  statute  ; 
and  the  law  requii'es  statutes  so  penal  to  be  construed  lilemlly  and 
strictly.^  he  was  not  excluded  from  the  benefit  of  clergy.  The 
other  judges  thought  him  to  be  cjccluded  ;  and  some  later  judges 
have  agreed  with  them.  But  the  argument  of  Mr.  Justice  Foster, 
whom  Sir  William  Blackstone  very  justly  styles  a  very  great  mas- 
ter of  the  crown  law,  and,  who,  as  lord  chief  justice  De  Grey,  upon 
an  important  occasion  said,  may  be  truly  called  the  magna  charta 
of  liberty  of  persons  as  well  as  fortunes,  amounts,  in  my  opinion, 
to  a  demonstration,  that  all  those  learned  judges  have  mistakesn 
the  law.  Sims  might  deserve  as  severe  a  punishment  as  Mid- 
winter, but  no  punishment  which  is  not  authorized  by  law,  ought 
to  be  inflicted  on  any  man  ;  and  the  point  is,  v/hethcr  the  law  in  this 
case  hath  provided  the  same  punishment  for  both.  Mr.  Justice 
Blackstone,  it  is  material  here  to  observe,  adopts  the  distinctions 
which  Mr.  Justice  Foster  endeavours  to  establish,  and  he  lays 
down  these  rules :  That,  "  when  the  benefit  of  clergy  is  taken 
away  from  the  offence  (as  in  the  case  of  murdei-,  burglary,  Sec.) 
a  principal  in  the  second  degree  aiding  and  abetting  the  crime,  is 
as  well  excluded  from  his  clergy  as  he  that  is  principal  in  th'- 
first  degree.  But  that  where  it  is  only  taken  from  the  fierson.  com^ 
mitting  the  offence,  as,  in  the  case  of  stabbing,  8cc.  his  aiders  or 
abettojrs  are  uoX.    excluded  ;    through  (he  tenderness  of  the  lavu 


398  Law  Miscellanies. 

ivhich  hath  determined  that   such  statutes  shall  be  taken  lUci'ally, 
1  Hale,  P.  C.  529.  Foslcr,  35  6. 

'••  In  the  appendix  to  the  third  edition  of  the  crown  law,  I 
inserted  this  case,  Mhich  the  author  had  most  reluctantly  omitted 
in  the  first  edition,  at  the  pressing  solicitation  of  lord  Mansfield, 
who,  in  February,  1772,  wrote  to  him  the  following  letter. 

"  I  return  your  papers  which  I  have  read  with  great  pleasure 
and  approbation  ;  but  I  very  much  wish  that  you  ':vould  not  enter 
your  protest  with  posterity  against  the  unanimous  opinion  of  the 
other  judges  in  the  case  of  Sims.  If  the  determination  was  con- 
trary to  former  authorities  there  is  no  harm  in  it.  Sims  was,  in 
every  view,  equally  guilty,  and  in  the  very  same  degree.  In  real 
truth,  and  not  by  fiction  of  law,  they  both  did  the  act.  Midwinter 
might  not  have  been  able  to  maim  had  not  Sims  holden.  Sec.  The 
authorities  which  you  cite  prove  strongly  to  the  contrary ;  but 
they  seem  to  be  futindcd  in  subtil  nicety,  and  very  learned  inter- 
pretation ;  and  upon  the  larg-c  principles  which  you  lay  down,  the 
doing  justice  to  the  public,  and  adapting  the  punishment  to  the 
degree  of  guilt,  it  is  impossible  to  say  that  Sims  was  not  equally 
criminal ;  and  if  his  punishinent  was  less,  it  could  only  arise  from 
a  slip  in  penning  the  act.  The  construction  is  agreeable  to  jusr- 
tice  ;  and  therefore  suppose  it  wrong  upon  artificial  reasonings  of 
law,  I  think  it  better  to  leave  the  matter  where  it  is.     It  is  not 

"  Dignus  vindice  nodus." 
"  If  this  case  had  been  published  agreeable  to  the  author's  deter^ 
mination,  in  1762,  it  is  probable  that  the  lives  oi  three  unfortunate 
men  would  have  been  spared.  Seven  men  were  indicted  on  the 
statute  of  George  1.  c.  22.  being  the  same  statute  on  which  Mid^ 
winter  and  Sims,  were  indicted,  for  shooting  at  John  Green,  in 
his  dwelling-house;  and  were  tried  at  the  Old  liailey,  in  1768. 
Thi-ee  of  them  were  proved  to  have  been  present  when  the 
others  fired,  but  they  Iiad  not  been  syen  to  use  any  fire-arms  them- 
fielves.  The  jury  found  them  all  guilty  ;  and  the  judges,  on  a  re- 
ference to  them,  determined  that  the  offence  of  all  was  capital,  and 
they  were  all  executed.  The  words  of  the  statute  are,  "  if  any 
person,  or  persons  shall  wilfully  and  maliciously  shoot  at  ajiy 
person  in  any  dweliing-house,  or  other  place,  every  person  so  ofr 
fending,  and  being  thereof  lawfully  convicted,  shall  be  adjudged 
guilty  of  felony,  and  shall  suffer  death  as  in  cases  of  felony  Avith- 
out  benefit  of  clergy."  This  case  is  exactly  similar  to  the  case  of 
>Iidwint('r  and  Sitns,  and  if  IMr.  Justice  Foster's  opinion  in.  that 
f:a?e  be  wrll  founded  ; , namely  that  the  benefit  of  clergy  is  taken 


k 


Law  Miscellanies.     '  309 

a\^ay  only  from  persons  actually  committing  the  ofFenccj  it  fol- 
lows necesarily  that  those  men  suffered  a  more  severe  pu- 
nishment than  the  law  authoriseth.  Sims,  as  I  have  already  said, 
might  deserve  as  severe  a  punishment  as  Midwinter;  but  if  by 
law  the  benefit  of  clergy  be  taken  from  the  latter,  and  not  from 
the  former,  the  same  punishment  ought  not  to  be  inflicted  on  both. 
In  such  cases  nothing  ought  to  be  left  to  the  discretion  of  judges  ; 
it  is  their  province  jus  dicere,  not  jus  dare.  "  The  discretion  of  a 
judge  is,  as  a  great  man  hath  said,  the  law  of  tyrants  ;  it  is  al- 
Avays  unknown  ;  it  is  differtnt  in  difftrent  men  ;  it  is  casual,  and 
depends  ufion  constitution,  temper  and  passion.  In  the  best,  it  is 
oftentimes  caprice  ;  in  the  worst  it  is  every  vice,  folly  and  passion 
to  which  hutnan  nature  is  liable.'^  See  lord  Camden's  argument  in 
the  case  of  Doe  v.  Kersey.     5  Geo.  III.  1765.  in  C.  B. 

"  Bell's  case  was  thus  ;  he  was  tried  at  the  Old  Baily,  in  1753, 
on  an  indictment  for  high  treason,  grounded  on  the  statute  8  and  9. 
William  III.  c.  26,  for  having  in  his  custody  sl  press  for  coinage 
without  any  lawful  authority,  or  sufficient  excuse,  and  was  convict- 
ed.     On  a  reference  to  the  judges  two  questions  were  made, 

«  1.  Whether  a  press  for  coinage  is  one  of  the  tools  or  instru- 
ments within  that  clause  of  the  act  on  which  this  indictment  is 
founded  ? 

"  2.  Supposing  it  to  be  within  the  clause,  whether  the  facts  stated 
in  the  case  amount  to  a  sufficient  excuse,  so  as  to  take  the  defend- 
ant out  of  the  penalties  of  the  act. 

"  Upon  the  first  question,  chief  justice  Ryder,  was  single,  and 
thought  that  a  press  for  coinage  is  not  one  of  the  tools  or  instru- 
ments within  the  clause  of  the  actonv/hich  the  indictment  is  found- 
ed. This  opinion  rests  on  a  very  slight  foundation  hi  point  of  law  } 
but  it  was  probably  occasioned  by  an  excess  of  caution  and  tender^ 
ness,  he  having  been  attorney  general  at  the  time  of  the  trial. 

"  Upon  the  second  question,  the  majority  of  the  judges  thoup-ht 
that  as  the  press  was  intended  for  coinuig  Louis  d'ors,  and  other  fo- 
reign pieces  not  the  current  coin  of  this  kingdom,  his  case  Avas  not: 
within  the  act.  But  the  other  two  judges  were  clearly  of  ophiion. 
that  as  the  press  was  intended  to  be  used,  in  coining,  and  was  fitted 
as  well  for  counterfeiting  the  coin  of  the  kingdom,  as  any  other  coin* 
the  prisoner's  case  was  within  the  act.  It  would  not  be  a  defence, 
they  thought,  within  the  sense  and  meaning  of  tlic  act,  for  him  to 
say,  I  intended  the  press -for  a  very  wicked  purpose,  b\it  not  for 
the  purpose  it  was  adapted  to  ;  1  intended  to  counuit  a  misprision  of 
treason  ;  but   not  hig;!!    treason ;   tlic  word:,  suffice  for  an  cjccuse. 


too  Law  Miscellanies. 

meaning  in  this  act,  as  they  do,  in  all  language,  an  honest,  a  fail', 
a  reasonable  excuse,  which  an  honest  man  may  make  -without 
blushing. 

"  To  a  memorandum  of  this  case,  justice  Foster  has  the  follow- 
ijig  note.* 

"  This  case  was  omitted  by  the  advice  of  Lord  Hardwicke  ; 
I  am  satisfied  that  the  cliief  justice,  (Ryder,)  upon  the  first  ques- 
tion, and  the  other  judges  on  the  second,  were  totally  mistaken.  A 
great  man,  formerly  of  the  profession,  by  whose  advice  it  is  omit- 
ted, told  me  that  he  hath  no  doubt  upon  either  of  the  questions.  I 
believe  that  his  advice  proceeded  from  a  regard  to  the  judges  ; 
or  from  his  fear  of  establishing  a  bad  precedent  by  the  authority 
of  great  names,  though  Tie  did  not  explain  himself  fully  upon  that 
head. 

"  A  sentence  in  a  letter  of  lord  Hardwicke,  February  24,  1761,  is 
the  following,  "  Permit  me  to  beg  that  you  would  reconsider  whe-* 
ther  it  may  be  advisable  to  send  into  the  world  the  case  of  John 
Bell.  I  forbear  to  express  my  reasons  for  calling  your  attention 
once  more  to  this  case." 

"  His  lordship  having  conceived  some  doubts  on  the  case  of 
Earl  Ferrers  was  very  desirous  to  prevent  the  publication  of  it ; 
and  with  that  view  he  Endeavoured  by  a  degree  of  intimidation,  to 
prevail  on  the  author  to  suppress  that  case ;  and  also  the  case  of 
John  Drummond,  and  captain  John  Gordon.  But  the  author 
was  so  perfectly  satisfied  in  the  case  of  Earl  Ferrers,  that  he 
could  not  comply  with  the  importunate  request  of  a  man  whom 
he  loved  and  honoured.  I  am  not,  and  I  believe  that  Mr.  Jus- 
tice Foster  was  not  apprized  of  lord  Hardwicke's  objections  ;  but 
I  well  remember  to  have  been  told  by  Mr.  Justice  Foster,  that,  in 
the  opinion  of  his  son,  Mr.  Solicitor  General  York,  they  were  lujt 
well  founded. 

"  From  these  instances  of  integrity  and  firmness,  it  may  l^e 
seen  that  the  compliment  paid  Mr.  Justice  Foster  by  the  cclebra 
ted  Churchhill,  in  his  Rosciad,  was  not  undeserved, 
"  Each  judge  was  true  and  steady  to  his  trust; 
As  Mansfield  "iinse,  and  as  old  Foster  just.'" 

*  In  his  reficrt  oj"  casea  or.  the  rroivn  lair- 


Law  Miscellanies.  401 

"  The  sheriff  is  an  officer  of  very  great  antiquity  in  this  king- 
tlom. 

■ The  deputy  of  tlie  earl,  or  Comes — 

The  king  by  his  letters  patent  committing   custcdium 

comitatus  to  the  sheriff,  and  him  alone. 

All  the  judges,  together  with  the  other  groat  officers,  and 

privy  counsellors  meet — 

• The  judges  propose  three  persons  to  be  reported  (if  ap- 
proved of)  to  the  king,  who  afterwards  appoints  one  of  them  to  be 
sheriff. 

■  •  Sheriffs  were  formerly  chosen  by  the  inhabitants  of  the 
several  counties."     I  Bl.  Com.  339,340,341. 

THE  sheriff  in  this  State,  from  an  early  period,  was 
elected  by  the  people  of  the  county,  and  commissioned  by 
the  governor ;  afterwards,  to  give  the  governor  some  selec- 
tion, two  persons  were  elected,  and  returned  ;  one  of  whom 
was  commissioned.  Experience  having  shown  abuses  in  the 
office,  several  successive  acts  of  assembly  passed  regulating 
the  election,  and  commissioning  of  sheriffs. 

I  have  not  the  old  acts  of  assembly  by  me  to  enable  me 
to  trace  minutely  these  provisions ;  nor  is  it  of  moment  to 
be  particular  on  this  head ;  as,  whether  the  election,  was  at 
first  annual,  or  triennial ;  or  whether  on  the  expiration  ot 
his  term,  the  same  person  was  re-eligible.  This,  however, 
I  recollect  from  memory,  that,  at  an  early  period,  it  was  pro- 
vided that  two  persons  being  elected,  and  returned  to  the  go- 
vernor, and  one  commissioned,  the  other  should  not  act  as 
deputy  to  him  that  was  commissioned.  This,  doubtless,  to 
prevent  collusion,  and,  to  use  a  mercantile  phrase,  joining 
stocks  in  the  election. 

It  was  afterwards  provided,  that  no  sheriff  shall  be  re- 
eligible,  but  at  an  interval  of  three  years  from  the  time  he 
had  been  sheriff;  and  farther,  by  an  act  before  the  revolu- 
tion, that  no  one  who  had  acted  in  the  capacity  of  deputy  to 
the  sheriff  within  one  year  from  the  expiration  of  his  office, 
should  be  eligible  to  the  office  of  sheriff.  This  was  a  most 
salutary   lav/,   as  precluding   favour  to  a  former  sheriff  to 

some  extent ;  salutary There  are  always  rules  to  be  taken 

upon  sheriffs  to  return  writs,  puymonev,  &c.  and  attachments 

3  E 


4(^2  Law  Miscellanies. 

may  be  necessaiy  to  enforce  these  rules  ;  and  attachment  te 
the  person  may  be  in  the  way  of  Se»ung  the  attachments  or- 
dered by  the  court. 

I  do  not  find  this  act ;  I  mean  to  say,  that  I  cannot  imme- 
diately turn  to  it,  not  having  what  are  called  the  province 
laws  in  my  office.  It  would  not  seem  to  have  been  brought 
forward  in  Dallas,  Smith,  or  Pardon.  Is  it  possible  that  it 
could  have  been  repealed,  or  considered  so  ?  Governor 
IM'Kean  acted  upon  it  in  1800,  in  the  case  of  a  deputy  elect- 
ed in  Allegheny  count}'.  He  rejected  him  who  was  highest 
upon  the  return  precisely  upon  this  ground. 

An  abuse  of  the  office  in  another  way,  had  taken  place 
about  this  time;  as  will  be  seen  by  the  following  document 
taken  from  the  docquet  of  the  supreme  court,  and  the  papers 
filed  in  that  office,  or  in  the  hands  of  the  counsel ;  and  my 
own  note  taken  at  the  time. 

Sitjiremc  Courts  March  Term^  1801. 

Shoemaker  v.  Wilson Judgment  of  March,  1797,^.  fa.\<9 

Scptem.  Testatum7?.ya.  to  Allegheny  of  Decemb.  Levied  on  289 
tracts  of  land  400  acres  each  and  74  warrants  400  acres  each.  Sale 
of  Avarrants  as  personal  property  for  720  dolls.  On  the  280  tracts 
inquisition  held  and  land  condemned.  Venditioni  exponas  to  March 
1798.  Land  sold  for  the  sum  of  4000  dollars  81.200,  less  than  5 
cents  an  acre. 

3  March  1798,  On  molion  of  Joseph  Thomas,  and  by  consen" 
of  Thomas  Collins,  rule  to  shew  cause  why  the  sale  of  the  74  wai 
rants  under  the,  fc.  fa.  ahd  the  sales  under  the  venditioni  exponas 
should  not  be  set  aside.  12   May  1798.  Deeds  ackno'U'ledffed  in  jII- 
Icgheny  and  recorded  the  sajne  day. 

Attorney  Thomas  "absconding,  nothing  heard  until  March  1800. 
Duncan  in  support  of  the  rule.  Levy,  inquisition,  and  the  words 
James  Sample,  Sherifl",  not  in  the  hand  writing  of  James  Sample, 
but  of  Thomas  Collins.  fTniTants  and  Tracts  /lut  u/i  and  sold  ir 
Intlk  several  at  a  time. 

No  copy  of  tlie  rule  to  set  aside  inc  sales,  served  upon  the  pur- 
<  hasrrs  prior  to  making  out  the  deeds.     Proof  that  at -the  time  of 
KMiscntirigtOthe  rule.,  Thomas  Collins  expressly  stipulated  that  : 
copy-ftliolild  be  served  upon  the  purchaser. 

Ali<";';ed  tliat  Tliovias  Collins  ivas  himself  the  purchaser.^  and 
V.vkI  notice  of  tJic  rule.  Postponcd'to  give  time  to  establish  this." 


Law  Miscellanies.  403 

March  Term,  1801.  J.  Ingersol,  Tilghman,  Duncan  in  support 
of  the  rule.     Dallas,  and  Reed  ui  support  of  the  sales. 

Deposition  of  James  Sample  that  his  signature  to  the  return 
of  sales  was^m  the  hand  writmg  of  Thomas  Collins,  but  that  he  sup- 
posed he  had  given  him  authority. 

2.  Deposition  of  J.  Sample  at  a  subsequent  date  and  in  the  hand 
writing  of  Thomas  Collins,  that  he  (Sample)  had  gi^'en  him  autho- 
z'ity  tasign  his  name. 

Allegation  that  Collins  was  the  principal  purchaser.  And  yet 
having  notice  of  the  rule  had  surreptitiously  gone  forward,  and 
with  a  haste  ivhich  marks  that  knoivledge,  procured  the  deeds  to 
be  acknowledged,  and  to  be  recorded  the  same  day. 

Dallas.  It  cannot  be.  Thut  would  be  at  ground  not  for  setting 
aside  the  sales  only,  but  the  ^tt^rneT/  himself. 

Depositions  read  establishing  the  fact  that  Collins  was  interest- 
ed in  the  sales  originc(llij^  and  at  the  time  of  taking  the  rule.  Sales 
net  aside  on  the  ground  of  irregularity.,  the  setting  ufi  and  selling 
more  than  one  nvarrant  and  tract  at  a  time. 

Here,  it  may  be  seen,  was  attorney  at  law,  deputy  she- 
riff, and  purchaser  in  the-same  person.  I  believe  I  might 
gay,  that  at  the  time  qf  the  transaction,  1797-8,  there  was 
deputy prothonotary.,  also. 

Hence  it  will  be  seen,  that  if  this  act  of  Assembly,  of 
which  I  speak,  should,  from  some  oversight,  be  found  to  be 
repealed,  or  considered  so  by  some  implication,  it  will  be 
expedient  to  re-enact  it,  adding  perhaps  a  section  making  it 
penal  for  an  attorney  at  law  to  act  as  deputy  sheriff,  or  deputy 
prothonotary,  or  be  a  concealed  purchaser  at  a  sheriff's  sale. 

It  is  true,  it  may  be  a  long  time,  before  such  a  combina= 
tion  of  characters,  and  combination  of  functions  in  one 
character,  may  a^ain  exist  as  did  at  this  time  in  that  western 
country. 


"  For  it  is  a  principle  of  universal  law,  that  the  natural  born 
subject  to  one  prince,  cannot,  by  any  act  of  his  own,  no,  not  by 
swearing  allegiance  to  another,  put  off  or  discharge  his  natural 
allegiance  to  the  former :  for  this  natural  allegiance  was  intrinsic, 
and  primitive,  and  antecedent  to  the  other ;  and  cannot  be  divest- 


404  Law  Miscellanies. 

ed  without  the  concurrent  act  of  that  prince,  to  whom  it  was  first 
due.  Indeed,  the  natural  born  subject  to  one  prince  to  whom  he 
owes  allegiance,  may  be  entangled  by  subjecting  himself  absolute- 
ly to  another:  but  it  is  his  own  act  that  brings  him  into  these 
straits  and  difficulties,  of  owing  service  to  two  masters ;  and  it  is 
unreasonable  that,  by  such  voluntary  act  of  his  own,  he  should  be 
able  at  pleasure  to  unloose  those  bands,  by  which  he  is  connected 
to  his  natural  prince."     1  Bl.  Com.  369. 

I  had  passed  over  this  dictum  or  position  of  Blackstone, 
seeing  the  very  excellent  note  of  judge  Tucker  in  loco.  Nor 
does  it  occur  to  me  to  add  any  thing,  now,  more  than  the  sanc- 
tion of  my  opinion,  if  that  should  carry  w^ith  it  any  weight. 
I  must  therefore  say  that  I  concur  in  totis  with  what  this 
American  jurist  has  said  upon  the  subject.  I  did  not  won- 
der at  that  great  man,  the  British  commentator,  laying  it 
down  to  be  the  law  of  England, that  the  natural  born  subject^ 
cannot  put  off  his  allegiance  ;  but  that  he  should  lay  it  down 
to  be  a  principle  of  universal  lam,  is  the  ground  of  my  asto- 
nishment. But  more  astonishing  still,  is  it,  that,  even  some 
in  this  couatry,  the  United  States,  seem  to  have  been  led 
away  with  something  like  the  same  sentiment.  I  can  ac- 
count for  it  only,  in  the  case  of  intelligent  men,  on  the 
ground  o£ political  bias;  and  this  from  not  having  a  hand  in 
the  administration,  or  that  party  in  the  republic  to  whom 
they  are  attached,  not  having  a  hand  in  it.  For  I  admit  that 
when  Jefferson  in  his  inaugural  address,  said  "  we  are  all 
federalists,  all  republicans,"  he  spoke  the  truth,  with  the  ex- 
ception of  a  Jew  attached  to  foreign  governments.  But  had 
he  said,  we  are  all  out ;  all  in;  would  this  haye  been  cor- 
rect? I  excuse  the  minority,  on  the  ground  of  human  pas- 
sions. But  the  time,  in  the  nature  of  our  government,  can- 
not be  remote  when  those  that  are  out,  will  be  in  ;  and  why 
suffer  for  a  moment,  the  messuage  to  be  dilapidated,  and 
a  single  stone  of  the  building  lost.  I  consider  it,  the  losing 
a  corner  stone ;  the  surrendering  an  essential  right,  if  we 
admit  for  a  moment  the  degradation  of  our  honour^  the  les- 
sening our  privilege  as  an  iaispsndeti':  people,  that  we  can- 
not reciive  all  that  CQine  to  us  without  qiiestians  asked,  save 


Law  Miscellanies.  405 

so  far  as  we  chuse  to  put  them.     The  law   of  that   island 
(Britain)  is  "  lex  sub  graviore  lege," 

Divisos  orbe  Brittannos  ; 

It  is  subject  to  the  divine  law,  the  law  of  nature^  and  the 
laxv  of  nations.  Universal  law,  is  directly  the  contrary  of  this 
lex  loci,  or  feudal  law  of  Britain.  For  what  is  that  lex  loci 
but  an  institution  of  barbarism,  introduced  by  the  Norman 
conquest  ?  to  whom  is  this  allegiance  due,  of  which  they 
speak,  but,  to  the  person  of  the  sovereign  ?  See  Cahi?i^s 
Case.  How  is  it  that  the  exiiere  patriam^  has  got  into  the 
place  of  the  exiiere  ligeantiam  ?  William  III.  did  not 
dare  to  confound  them;  and  when  he  took  the  duke  of 
Berwick^  prisoner  in  the  Loav  countries,  did  not  venture  to 

*  In  the  sketch  of  an  historical  panegyric  of  the  marshal  of  Ber- 
wick, by  president  Montesquieu,  prefixed  to  the  memoirs  of  the 
marshal,  the  question  is  noticed,  whether  he  had  a  right  to  be- 
come a  Fi*enchman.  This  question  says  the  president,  Grotius, 
PufFendorf  and  all  those  wi'iters  who  have  influenced  the  opinions 
of  Europe,  have  decided;  and  declared  to  him,  that  he  was 
a  Frenchman,  and  subject  to  the  laws  of  France.  In  these 
Memoirs,  the  marshal  mentions  the  case  of  a  general  officer^  a  Por- 
tuguese, while  the  war  was  carried  on  by  him  (the  marshal)  at  the 
head  of  Spanish  forces,  on  the  frontier  of  Portugal,  who  wrote  a 
note  bifa  countryman^  "  to  acquamt  me,  that  although  he  was  not 
known  to  mc,  yet  he  had  so  much  respect  for  his  catholic  majesty, 
that  he  would  give  me  the  intelligence  of  all  that  passed  ;  and  in- 
deed he  was  very  exact  in  apprising  me  before  hand  of  all  the  di^er- 
ent  movements^  tl.c  enemy  intended  to  make,  which  was  of  great 
service  to  me.  He  sent  v/ord  that  he  was  very  desirous  of  see- 
ing me ;  that  he  could  easily  contrive  it,  when  it  was  his  turn  of 
duty,  under  pretence  of  visiting  the  out  posts  ;  and  if  I  Avould  send 
an  ojRRcer  to  him  at  a  certain  spot,  he  Avould  come  there  by  night 
and  visit  me  in  my  own  quarters.  Accordingly  every  thing  was 
executed  as  he  had  proposed,  and  I  held  a  conference  of  two 
hours  with  him,  with  which  I  was  very  well  satisfied,  from  the  ac- 
curate and  particular  account  he  gave  me  of  the  state  of  the  ene- 
my and  their  designs.  This  visionary  man  had  taken  it  into  his 
head,  that  he  was  serving  the  king  his  master  by  this  j?/zc  coiitri- 
vance ;  for,  said  he,  it  is  against  his  interest  to  be  at  war  ivith 
■^pQin ;  so  that  it  is  necessary  that  his  eyes  should  be  opened  by 


4.0&  Law  Miscellanies. 

proceed  against  him  on  the  footing  of  a  traitor.  The  duke 
of  Berwick  was  England  born,  and  a  natural  son  of  James 
II.  "■'  The  prince  of  Orange,"  says  he,  memoirs  vol.  1.  117, 
"  certainly  had  a  design  of  sending  me  prisoner  to  England, 
where  I  should  have  been  closely  confined  in  the  tower  of 
London,  though  that  would  have  been  contrary  to  all  the 
rules  of  war,  though  he  pretended  that  I  was  his  subje£t,  and 
consequently  a  rebcL^^ 

But  the  lex  loci  of  Britain  considers  a  subject  as  the 
hinges  or  the  ?iai'ion*s  property ;  and  shall  we  be  justifiable 
in  harbouring  a  slave  ?  I  quote  a  case  ad  hominem ;  that  of 
Somerset  V.  Stuart;  Loft's  reports,  1.  Somerset,  a  native 
of  Virginia,  and  a  salve  by  the  lex  loci,  but  having  been 
brought  upon  English  ground,  a  habeas  corpus  from  lord 
Mansfield  issues,  and  he  is  pronounced y^e^*.  Could  he  have 
been  retaken  by  the  owner,  out  of  a  British  vessel  on  the 
high  seas  P  The  floating  domicile  would  have  protected 
him,  as  much  as  the  clausum,  or  close  on  land.  The  power 
of  the  government  would  protect  him  where  the  municipal 
laxv  could  not  reach. 

Azuni  has  been  quoted,  as  sanctioning  the  right  of 
search;  and  that  the  right  of  search^  implies  a  right  to  take 
the  body  of  a  mail,  when  found  upon  the  high  seas.  But  this 
he  does  not  say ;  nor  can  it  be  inferred  from  the  role  d*  e- 
quipage,  or  muster  roll  of  the  crew  being  called  for ;  for 
which-  he  cites  Hubner  j  for  this  is  only  for  the  purpose  of 
ascertaining  the  character  of  the  vessel,  whether  neutral,  or 
belligerent.  The  ship,  or  cargo  may  be  made  prize  of  war ; 
but,  are  the  crew  ever  taken  to  be  the  subjects  of  an  ad- 
miralty condemnation,  or  of  sale?  2  Azuni,  213,  N.  York 
edition,  1806,  translated  from  the  French.  There  is  no  car- 
rying in,  for  adjudication;  or  admiralty  process  to  try,  whe- 

mis/Grtimes."  It  may  be  on  the  same  principle  that  citizens  not 
thinkuig  the  present  war  /ust,  or  expedient,  may  be  more  pleased 
with  our  disasters  than  our  victories.  It  is  of  moment  therefore, 
that  the  right  of  expatriation,  Avhich  is  at  the  bottom  of  our  contro- 
versy, so  far  at  least  as  respects  the  justice  of  the  war,  be  explained ; 
iUld  it  is  "with  this  view,  that  I  have  said  any  thing  on  the  subject.. 


Law  Miscellanies.  407' 

ther  a  person  alleged  to  be  a  British  subject,  may  not  have 

been  an  American  born. 

It  can  be  accounted  for,  only  on  the  ground  of  prejudice, 
that  such  a  violation  of  a  right  which  Britain  herself  asserts 
against  the  world,  the  protecting  her  domicil,  whether  upon 
the  water,  or  on  terra  firma,  should  not  be  considered  a  just 
cause  of  xvar,  I  say  nothing  of  the  expediency  of  putting 
ourselves  in  a  situation,  by  our  naturalization  laws,  to  be 
under  the  necessity  of  suffering  national  dishonour^  or  pro- 
tecting all  whom  we  have  naturalized.  On  this  head  I  have 
already  thrown  out  some  ideas.  For  the  right  of  an  indivi- 
dual to  expatriate,  and  any  nation  to  naturalize,  I  may  sub- 
join some  authorities,  and  some  reasonings  in  a  proper  place. 
I  observe  only  here,  that  Britain  would  not  surrender  even 
a  murderer  from  another  power,  that  had  taken  refuge  in 
her  island.  And  can  it  be  doubted,  but  that  she  would  pro- 
tect him  on  board  a  merchant  ship,  by  her  maritime  law  and 
power,  as  much  as  if  at  land  by  her  municipal  ?  In  the  one 
case  a  writ  of  habeas  corpus  would  issue  from  the  civil  au- 
thority ;  and  in  the  other,  a  demand  would  be  made  of  the  go- 
vernment trespassing ;  and  the  injury  not  being  redressed, 
she  would  denounce  war.  She  would  consider  the  taking  a 
single  individual  as  a  cause  of  war  ;  not  for  the  sake  of  the 
person,  nor  for  the  sake  of  the  trespass,  in  the  particular  in- 
stance, but  for  the  sake  of  the  principle  ivhich  it  involved* 

Note  to  me  of  a  learned  jurist,  to  whom  I  put  the  question 
as  to  his  idea  of  the  universality  of  tlic  acknowledgment  of  ^ler- 
petual  allei-'iance. 

It  is  said  that  this  doctrine  extends  all  over  Europe,  but  no- 
thing is  less  true.  In  I'dc  first  place  the  ^^■ord  ullegiance,  tliough  of 
French  derivation,  h;is  obtained  in  England,  and  there  alone,  the 
sense  in  which  ^\c  use  it.  In  the  Frcncli  laiio-uagc  the  Avord  itself 
is  unknown,  at  least  I  never  ha\c  read  it  in  any  l)uok  or  found  it 
in  any  dictionary.  In  its  origin,  it  scenia,  it,  implied  no  more  than 
the  feudal  relation  between  the  lords  and  vassals  of  certain  fiefs 
caUedT?.'^^-  Uffcs,  in  which  the  vaSsftl  swore  feally  to  his  lord,  by  put- 
tins^  his  hands  into  his,  in  token  of  bodily  subjection,  and  saying  the 
words,  jco  devicns  -uoatre  home,  I  arn  or  become  your  man,  alias 
■^-our  slave — T^"'  m^I  <ri;fTt--  ■■'"■>■,.  ,.,.f  „^:^\  ■,,  ■''-■•riptron,  andlhosc- 


403  Law  Miscellanies. 

who  held  no  feudal  lands,  were  not  bound  to  swear  hommage  lige*. 
were  not  liege  men,  and  did  not  owe  of  course  allegiance.  In 
process  of  time  flattery,  in  England,  applied  the  word  allegiance 
to  the  relation  between  king  and  subject, — It  was  at  first  a  com- 
pliment, a  word  of  course,  but  time-serving  judges  scon  gave  a 
legal  sanction  to  its  application,  and  the  duty  of  allegiance  as  now 
vinderstood  in  England  became  law.  But  tlic  same  was  not  done 
in  any  other  country. 

In  France  the  legal  effects  of  the  relations  between  king  and 
subject  were  left  to  the  rules  of  the  law  of  nations,  and  of  the  civil 
■  law,  until  the  troublesome  times  of  the  revocation  of  the  edict  of 
Nantes,  when  the  emigration  of  the  protestants  becoming  conside- 
rable, tyi'annical  laws  were  made  to  check  it.  But  those  laws  were 
always  considered  by  the  sensible  men  in  France,  as  in  England 
the  treason  laws  of  Henry  8. —  /\nd  though  a  despotic  government 
might  sometimes  use  them  as  a  rod,  yet  they  were  well  under- 
stood to  be  the  offspring  of  bad  times. 

Still  those  laws  did  not  go  so  far  as  to  establish  the  English 
doctrine  of  perpetual  allegiance,  they  prohibited  emigration  with- 
out leave  of  the  prince  under  certain  penalties,  one  of  which  waa 
that  the  emigrant  should  be  considered  as  an  alien.,  a  proof  that  he 
was  not  thought  to  remain  perpetually  a  subject.  See  Royal 
Edicts,  August  1669,  July  1682,  August  1682,  and  July  1705,  all 
TC\3iCLC  Jla grant e  prosccutione  firotestantium. 

Now  see  how  these  laws  worked  in  practice.  In  the  year 
1747,  Gen.  Ligonier,  born  a  French  subject,  but  then  in  the  Bri- 
tish service,  was  taken  prisoner  at  the  battle  of  LaAvfeldt,  and 
brought  to  Lewis  XV.  The  monarch  invited  him  to  dine  at  his 
table.  Less  than  two  years  befoi'e,  several  Scotch  and  Irish  officers 
in  the  French  service,  taken  prisoners  by  the  English,  had  been 
hanged,  embowelled,  quartered,  and  suffered  the  horrid  punish- 
ment of  traitors. 

I  copy  the  relation  of  Voltaire  on  tliis  subject  in  his  own  words : 

"  Cct  officier  general  des  troupes  angloises  (Ligonier)  etoit  nc 
"  son  sujct ;  il  le  fit  manger  a  sa  table  ;  et  des  Ecossois  officiers 
"  au  service  de  France,  avoicnt  peri  par  le  dernier  supplice  en 
"  angleterre,  dans  1'  infortune  du  prince  Charles  Edouard." 

Volt.  Siecle  de  Louis  XV.  p.  226.     Edit.  Kehl. 

The  late  Edicts  of  Bonaparte,  I  take  to  be  a  violation  of  the 
fundamental  laws  of  France,  an  act  of  wanton  tyranny,  that  Avill 
expire  Avlth  his  power. 


Law  Miscellanies.  409 

I  know  of  no  similar  law  in  any  other  country  in  Europe. 

The  civilians  are  agreed  that  a  subject  may  freely  emigrate, 
except  in  certain  cases,  which  are  well  understood. — See  Heinec- 
cius,  Grotius,  Vattel,  and  all  the  host  of  publicists.  Even  Dr. 
2ouch,  an  Englishman,  agrees  with  Grotius,  that  "  extra  hos  ca- 
"  sus  (public  danger  and  the  like)  credibile  est  ad  liberam  civium 
"  discessionem  populos  consentire." — See  Zouch,  de  jure  inter 
gentes,  part.  2  Chap.  12.  See  also  SirLeoline  Jenkins,  who  ad- 
mits that  natives  of  France,  settled  in  a  neutral  country  previous  to 
a  war,  are  to  be  considered  by  the  British  as  neutrals.  I  copy  his 
own  words  from  his  letter  to  the  lords  commissioners  for  prizes 
of  the  1 7th  Sept.  1666 — in  1  Magens  on  Ins.  527. 

"  Among  the  Laders,  my  Lord,  I  found  two  names  which  I 
"  guessed  to  be  French,  and  the  secretary  who  solicits  this  business 
"  could  not  but  acknowledge  the  persons  (Du  Prie  and  Heron)  to 
"be  Frenchmen  bom.  But  the  salvo  that  he  and  the  shipper  gave 
'•  me  upon  oath,  is  that  Du  Prie  had  lived  in  Hamburg  with  ins  wife 
"  and  family  for  above  these  20  years,  and  that  the  other  had  li'Red 
"  there  likewise  these  8  years — iv/iic/i,  regularly,  is  sufficient  inka-iV 
"  to  excuse  him,  as  I  humbly  conceive,  from  being  subjected  to  the 
^''  same  reprisals  with  the  rest  of  his  countrymen.''' 


The  case  of  Clark  soitenced  as  a  Spy,  remarked  upon. 

Elijah  Clark  was  convicted  as  a  spy  at  a  general  court 
martial  holden  at  the  court-house  in  the  village  of  Buffalo, 
on  Wednesday  5th  Aug.  1812,  and  continued  by  adjournment, 
from  day  to  day,  until  Saturday  8th  Aug.  1812. 

The  facts  in  evidence  were,  that  he  had,  about  18  months 
before,  removed  with  his  wife  to  Canada;  and  that  having  cros- 
sed the  lines  "  did  linger  about  the  encampments  and  army  of 
the  United  States,  for  the  purpose  of  spying  out  our  state  and 
condition  ;  and  of  reporting  the  same  to  our  enemies ;  and  for 
these  reasons  the  court  are  of  opinion  that  the  said  Elijah 
Clark  is  guilty  of  the  crime  whereof  he  stands  charged; 
and  falls  under  the  101  article  of  the  act  entitled  "  an  act 
fur  establishing  rules  and  articles  for  the  government  of  the 

3  F 


410  Law  Miscellanies. 

armies  of  the  United  States,"  passed  the  10th  day  of  April, 
1806. 

And  they  do  adjudge  and  sentence  the  said  Elijah  Clark, 
to  be  continued  in  the  present  place  of  his  confinement  until 
the  1st  Friday  of  September  next,  and  that  he  be  at  the  hour 
of  two  o'clock  in  the  afternoon  of  that  day,  taken  from  his 
said  place  of  confinement,  and  hung  by  the  neck  until  he  be 
dead. 

PHILETUS  SWIFT,  President. 
GEO.  HOSMER,  yud^e  advocate. 

Head- garters  ^  Manchester^  Niagara  frontiers^ 

August  13,  1812. 
GENERAL  ORDERS. 
iNIajor  general  Hall,  having  doubt  how  far  the  prisoner* 
(Elijah  Clark)  within  named,  comes  within  the  description 
of  a  spy,  by  reason  that  he  is  within  the  letter  of  the  second 
section  of  the  101  article  of  the  act,  entitled  "an  act  for 
establishing  rules  and  articles  for  the  government  of  the 
armies  of  the  United  States,"  which  excepts  thereout,  "  all 
persons  not  citizens  of,  or  owing  allegiance  to  the  United 
States  of  America,"  is  pleased  to  order,  and  doth  hereby 
order  a  suspension  of  the  execution  of  the  within  sentence, 
until  the  pleasure  of  the  president  of  the  United  States  can 
be  known  thereon. 

By  order  of  the  Major  General, 

GEO.  HOSMER,  A.  D.  C. 

OPINION  OF  THE  PRESIDENT. 

JVar  Department^  Oct.  20, 1812. 
Sir, 

The  proceedings  and  sentence  of  the  general  court  mar- 
tial, which  was  had  in  the  case  of  Elijah  Clark,  conformable 
to  your  orders  of  the  first  of  August  last,  and  which  were  by 
you  transmitted  to  this  department,  have  been  received  and 
laid  before  the  president.  I  have  the  honour  to  inform  you 
that  the  said  Clark  being  considered  a  citizen  of  the  United 
States,  and  not  liable  to  be  tried  by  a  court  martial  as  a 
rpv,  the  president  is  pleased  to  direct,  that  unless  he  should 


Law  Miscellanies.  411 

be  arraigned  by  the  civil  court  for  treason,  or  a  minor  crime, 
under  the  laws  of  the  state  of  New  York,  he  mvist  be  dis- 
charged. 

Very  respectfully, 

I  have  the  honour  to  be, 
Sir,  your  obedient  servant. 

W.  EUSTIS. 
Major  General  A.  Hall,  Niagara. 

GENERAL  ORDERS. 

Consequent  on  the  opinion  of  the  president. 

The  pleasure  of  his  excellency  the  president  of  the  Unit- 
ed States  of  America,  in  relation  to  the  case  of  Elijah  Clark, 
who  was  tried  and  convicted  of  being  a  spy,  under  and  by 
virtue  of  general  orders  of  August  1st  ultimo,  and  whose 
execution  was  suspended  by  general  orders  of  August  13th 
ultimo,  having  this  day  been  made  known  to  the  major  general 
through  the  honourable  the  secretary  at  war,  therefore,  in 
conformity  to  the  directions  of  his  excellency  the  president, 
it  ie  hereby  ordered  "  that  the  said  Clark  being  considered 
"  a  citizen  of  the  United  States,  and  not  liable  to  be  tried  by 
"  a  court  martial  as  a  spy,  therefore,  unless  he  should 
'•^  be  arraigned  by  the  civil  courts  for  treason  or  some  viinor 
"  crime  under  the  laws  of  the  state  of  New  York,  he  must 
"  be  discharged." 

All  officers  and  military  authorities  whatever,  in  whose 
custody  the  said  Clark  shall  or  may  happen  to  be,  for  the 
cause  aforesaid,  are  hereby  directed  to  release  him  from  his 
said  arrest  as  a  spy. 

Lieutenant  colonel  Philetus  Swift  is  particularly  charged 
with  the  execution  of  the  order. 

By  order  of  Major  General  Hall, 

GEO.  HOSMER,  A.  D.  C. 
Bloomfield,  December  2d,  1812. 

Once  a  cltii&en,  and  always  a  citizen,  until  the  contrar}" 
be  shewn ;  so  that  it  ^\(\.  not  follow  that  because  Clark  had 
removed  to  Canada,  Sec.  he  had  expatriated,  and  consider- 
ed himself  a  subject  of  the  king  of  England.     It  was  incon- 


412  Law  Miscellanies. 

sistent  with  his  safety  to  set  up  that  plea  ;  and  therefore,  it 
may  be  presumed,  that  he  did  not  set  it  up.  By  his  tempo- 
rary allegiance  he  could  commit  treason  against  the  king  of 
England,  even  though  he  had  not  been  naturalized,  or  had 
put  off  the  United  States.  But  he  could  not  be  considered  a 
spy  to  the  United  States,  in  consequence  of  that  temporary 
allegiance  ;  and,  in  this,  the  court  had  erred  in  taking  cog- 
nizance of  his  acts  in  that  point  of  view.  If  he  had  set  up 
the  defence  that  he  had  become  a  subject  of  the  British  go- 
vernment in  Canada,  there  would  have  been  no  difficulty : 
he  might  have  been  hanged  at  once.  It  was  not  because  he 
could  not  have  ceased  to  be  a  citizen;  but,  because  he  did 
not  allege  that  he  had  expatriated,  that  the  civil  authority 
alone  could  interpose ;  and,  to  this,  he  was  ordered  to  be 
delivered. 

I  see  no  evidence  in  this,  of  President  Madison  giving 
countenance  to  the  idea  of  the  exiiere  patriam  ;  or  of  Clark 
not  having  been  able  to  put  off  his  condition,  or  character 
of  a  citizen  of  the  United  States.  When  he  came  before 
the  civil  tribunal,  he  might  plead  his  expatriation,  and  if 
found  for  him,  he  could  be  remitted  to  the  military  juris- 
diction to  be  hanged  according  to  his  sentence. 

I  can  have  no  idea  that  president  Madison  would  con- 
trovert the  doctrine  of  feudal  allegiance  according  to  the  law 
of  England;  but  as  to  an  American  citizen  not  being  able 
to  put  off  his  allegiance  to  his  government,  it  is  quite  another 
matter.  But  even  in  England  as  to  the  extent  of  the  claim 
of  perpetual  allegiance  to  a  subject  who  relinquishes  his 
feud,  I  presume  he  would  question  it. 

The  feudalist  cannot  put  off  his  ligeance  to  his  lord  by  a 
law  of  the  feudal  system;  but  it  is  rat'ione  tenurcc^  that  he  can- 
not :  the  feud  is  the  vinculum.  But  if  he  ceases  to  claim  the 
feud,  what  right  has  the  lord  to  his  homage  ?  He  owes  ser- 
vices for  the  clod,  while  he  claims  the  clod.  But  unless  he 
is  adstrictus  glebae ;  or  tied  to  the  clod,  like  a  serf,  he  can  put 
it  off.  Must  a  man  who  has  no  clod,  or  is  willing  to  relin- 
quish it,  be  tied  to  the  xvhole  clod  of  the  dominium,  so  that 
he  cannot  put  it  off?' 


Law  Miscellanies.  413 

That  the  feudalist  cannot  untie  himself  from  his  ligeance 
to  the  lord  paramount  the  king,  is  a  law  of  that  system.  But 
still,  this  is  ratione  tenurse,  and  from  his  infeudation.     That 
this  principle  should  apply  to  such  as  have  no  feud,  or  are 
willing  to  shake  off  the  clod,  is  contrary  to  the  artificial  rea- 
son of  the  system.     Hence  it  is,  that  colonial  emigration  car- 
ries no  such  principle  with  it,    that  mere  labourers,  or  per- 
sons merely  merchants,   or  manufacturers,   ought  not  to  be 
considered  as  having  any  thing  to  do  with  it.     Seamen,  who 
plough  the  wave,  what  have  they  to  do  with  a  feud  ;  or  an 
adstriction  to  the  clod  of  the  kingdom  ?     Their  employment 
is  not  on  terra  firma  ;  and  it  can  only  be  by  -AJictiQn  that  they 
can  be  considered  feudalists.     Independent  of  an  adstriction 
to  the   clod,   the  sovereign  can  claim  them  only  so   long  as 
they  are  willing  to  stay  on  the  land,  or  have  contracted  to 
stay.  A  contract  cannot  exist  where  their  services  have  been 
impressed.     The  pride  of  an  Englishman  would  be  hurt,  if 
he  was  told  that  he  was  a  serf  to  his  monarch  ;  and  what 
else  can  he  be  considered,  if  he  cannot  shake  off  his  clog,  but 
must  be  considered  as  tied  to  the  island  ? 

The  ultima  ratio  must  now  determine  the  question  as 
between  the  United  States,  and  the  Brituh  empire.  It  is 
brought  to  the  test  between  the  two  governments,  by  order- 
ing to  England  for  trial,  individuals  taken  in  arms,  and  al- 
leged to  be  the  subjects  of  that  power.  The  retaliation  by 
a  taking  inwithernam,  as  the  common  law  terms  it,  individu- 
als of  that  government,  must  bring  it  to  the  test;  and  I  may 
therefore  consider  it,  a  little  more  fully.  There  can  be  no 
doubt,  but  that  it  has  come  to  be  considered  their  law,  that 
a  subject  cannot  put  off  his  allegiance.  In  the  charter  of 
privileges,  extorted  from  king  John,  liceat  de  cetero,  uni- 
cuique  de  regno  nostro  exire,  salva  fide  nostra,  nisi  tem- 
pore guerre.  Sec.  Fealty,  to  the  king,  and  the  going  in  time 
of  war,  is  the  exception  ;  the  putting  off  the  allegiance  of  the 
sovereign,  makes  no  part  of  the  privilege  of  going  abroad ; 
and  this  involves  the  not  putting  off  subjection  to  the  go- 
vernment. Being  so,  it  is  but  the  cant  of  poets,  and  ora- 
tors, to  say  that  an  Englishman  is  free-born.  Neverthe- 
less, Daniel  de  Foe,  in  his  poem,  stiled,  the  true  English- 
man^ though  poetical  licence  might  allow  it,  docs  not  yen- 


414  Law  Miscellanies. 

ture  to  scythe  free  Englishman.  The  truth  is,  in  strictness, 
the  Englishman  is  not  free-born.  When  we  come  to  the 
lawyers^  they  will  tell  you,  of  a  general  restraint^  under  the 
charter ;  and  a  particular  restraint  by  the  writ  Ne  exeat  reg- 
no. An  English  subj,ect,  is  therefore  confined  to  the  prison- 
bounds  of  the  island.  I  say  island,  because,  that  is  the  home- 
stead of  the  government.  A  British  subject  is  in  legal  strict- 
ness, as  much  confined  to  those  limits  of  subjection,  as  the 
convicts  at  Castle  William,  on  Governor's  island,  in  Boston 
harbour.  Tufts  and  Burroughs  had  the  privilege  of  the 
island  ;  but  they  were  restrained  from  leaving  it. 

But  do  the  British  take  subjects  belonging  to  other  coun- 
tries ?  They  are  no  slouches  at  this.  But  do  they  keep  them 
too  ?  Ay,  defend  them  against  all  the  world.  They  would 
think  themselves  degraded  to  give  up  even  a  murderer^  a 
fugitive  from  justice  from  another  country  who  had  taken 
sanctuary  with  them.  Does  not  this  operate  as  an  estoppel, 
which  is  a  term  of  their  own  law,  to  say,  that  other  people 
shall  not  have  the  same  right  ?  Will  they  admit  that  the 
United  States  have  a  right  to  reclaim  a  citizen  expatriated, 
and  take  him  out  of  a  vessel  at  sea  j  or  a  port  on  land,  and 
hang  him  ?  John  Bull  would  roar  like  a  mad  bull,  if  this  preten- 
sion was  set  up.  I  admit,  that  whether  derived  from  the  Ger-^ 
man,  or,  more  immediately  imposed  by  the  Norman,  the  ne 
Hceat  exire,  nisi  salvafide,  to  the  prince,  is  a  law  of  their 
island.  But  when  it  comes  to  be  a  matter  with  the  right  of 
another  nation^iheiY  own  practice  may  be  set  up.  But  if  it 
werenottheir  own  practice,  there  is  another  right  to  be  con- 
sulted, that  of  another  nation.  This  must  be  determined,  by 
an  appeal  to  the  law  of  nature,  and  the  law  of  nations. 

The  law  of  nature,  does  not  acknowledge  the  prohibition 
to  expatriate.  The  Roman  law  gave  a  right  to  the  parent 
to  put  to  death  his  offspring,  either  by  exposing,  or  by  capi- 
tal punishment,  when  the  child  offended.  Did  this  take 
away  the  right  of  a  Sabine,  a  Volscian  or  a  Samnite  to  pro- 
tect the  child,  when  he  came  amongst  them  ?  The  Roman  re- 
public, even  in  the  plenitude  of  her  arrogance,  when  she  came 
to  her  full  majesty,  did  not  affect  this.  We  hear  nothin^of 
*t,  even  in  the  times  of  thQ  Csesars,  as  a  cause  of  war. 


Law  Miscellanies.  ^15 

Extract  of  two  notes  of  Mr,  Duponceau^  under  the  head  of 
allegiance,  from  the  American  edition  of  the  Edijiburgk 
EncyclopOidia ;  506  and  508. 

*«  The  %vord  allegiance  is  of  modem  date.  In  the  ancient 
books  and  statutes  it  is  written  legeance  ;  and,  from  thence, 
has  been  framed  the  barbarous  latin  word  ligeantia.  The 
generally  admitted  derivation  of  these  words,  from  the  latin 
lig-are,  or  alligare^  as  expressive  of  the  bond,  or  connection 
subsisting  between  the  lord  and  his  vassal,  has  always  ap- 
peared to  us  to  be  a  forced  etymology ;  because  few  of  the 
genuine  terms  of  the  feudal  law  have  been  borrowed  from 
the  latin  language ;  but  their  origin  is  rather  to  be  sought 
for  in  the  idioms  of  the  northern  conquerors,  who  introdu- 
ced that  system  into  the  provinces  of  the  Roman  empire. 

Doctor  Johnson  very  properly  derives  allegare  from  the 
French  word  lige^  which  was  itself  the  denomination  of  a 
particular  species  of  feud  called  fief  lig-e. 

The  French  and  particularly  the  Angivins  and  Normans 
said,  homme  liege^  vassal  liege^  hommage  liege^  fef  liege; 
and  out  of  the  adjective,  liege,  formed  the  substantive  li- 
gence ;  ixovcs.  which  the  English  made  l?geance,SLndligea7itia, 
and  afterwards  allegiance. 

The  French  as  well  as  the  English  etymologists  derive 
the  word  liege  from  the  latin  ligare;  but  we  cannot  agree 
with  them  in  this  opinion,  and  are  inclined  to  tract;  that  term 
to  another  and  more  legitimate  source. 

Thefef  liege  is  defined  by  the  French  feudists  to  be  a 
species  of  fef  the  tenure  of  which  is  called  iigence ;  by 
which  the  vassal  is  bound,  not  only  to  fealty,  but  to  person- 
al service,  which  distinguishes  it  from  the  fitf  simple  (fee 
fiimple)  which  binds  the  tenant  to  ftalty  only.  Hence  the 
fief  lige,  is,  by  the  French  jurists,  also  denominated ^<y  de 
orpH^  in  allusion  to  the  corporal  service  which  the  vassal  is 
bound  to  perform;  and  the  corporal  oaths  ^vhich  he  takes 
on  doing  homage,  by  holding  both  his  hands,  between  those 
of  his  sovereign.  F^rriere  Diet,  de  droit  vcrho  fitf  lige.  Den- 
nisart.     Collect,  de  jurisprudens.  end.  verbo.  The  difFerence 


416  Law  Miscellanies. 

between  feudum  ligeum,  and  feudum  simplex^  is   also  well 
explained  by  Blackstone,  1  Com.  357. 

We  are  for  this  reason  strongly  inclined  to  believe  that 
the  word  lige  takes  its  derivation  from  the  Norman  or  Da- 
nish word  lig^  which  signifies  body,  and  thus,  in  the  original 
language,  as  well  as  in  the  modern  French,  the  true  significa- 
tion of  fief  liege^  is  a  corporal  Jief  or  Jief  de  corps  as  well 
on  account  of  the  personal  services  to  be  rendered,  as  of  the 
corporal  oath  which  the  vassal  was  obliged  to  take." 


"  THE  doctrine  of  perpetual  allegiance  is  repugnant  to 
the  principle  of  republican  governments.  We  are  told  by 
Plato  that  the  Athenian  citizens  might  freely  expatriate  them- 
selves, whenever  they  became  dissatisfied  with  their  own 
country.     Dialogue  between  Socrates  and  Crito.  Sec.  8. 

And  Cicero  considered  the  right  of  expatriation  as  the 
firmest  foundation  of  Roman  liberty.  Every  scholar  has  read 
and  admired  the  beautiful  apostrophe  into  which  he  breaks 
out  upon  this  subject,  in  his  oration  for  Balbus. 

O,  Jura  proeclara,  atque  divinitus  a  majoribus  nostris 
comparata !  ne  quis  invitus  civitate  mutetur,  neve  in  civitate 
maneat  invitus.  Hsec  sunt  enim  fundimenta  firmissima 
nostra  libertatis,  sui  quemque  juris,  etretinendi,et  dimitten- 
di  esse  dominum. 

The  same  principle  formerly  obtained  in  the  republics 
of  modern  Europe ;  and  particularly  in  Holland  and  Swit- 
zerland. Indeed  the  publicists  contended  for  the  right  of 
emigration,  even  under  monarchical  governments ;  and,  the 
learned  Binkershoeck,  has  no  hesitation  in  saying  that  it  is 
lawful  for  the  subject  to  emigrate  wherever  the  country  is 
not  a  prison.     Quest.  Jur.  pub.  lib.  1.  c.  22. 

In  the  United  States  the  right  of  expatriation,  has  been 
solemnly  recognized,  by  a  decision  of  the  supreme  judicial 
authority ;  with  these  restrictions,  however,  that  it  must  be 
exercised  at  such  time,  in  such  manner,  and  under  such  cir- 
cuinstances,  as  not  to  endanger  the   peace  or  safety  of  the 


Law  Miscellanies*  417 

United  States ;  and  that  the  bona  fide  intention  of  the  party 
to  expatriate  himself  must  be  clearly  proved,  so  that  the  act 
of  emigrating  be  not  made  a  mere  cover  to  evade  or  violate 
the  laws  of  our  own  country.  Talbot  v.  Janson,  3  Dall.  133. 

So  far  the  general  principle  has  become  a  part  of  our  mu- 
nicipal law ;  but  several  important  questions  depending  upon 
it,  still  remain  to  be  determined.  Among  those  the  supreme 
court  has  reserved  for  future  consideration,  "  whether  a  citi- 
zen of  the  United  States  can  divest  himself  absolutely  of 
that  character,  otherwise  than  in  such  manner  as  may  be  pre- 
scribed by  our  own  laws  ;  and  whether  his  expatriation  would 
be  sufficient  to  rescue  him  from  punishment  for  a  crime  com- 
mitted against  the  United  States."  Murray  v.  the  Charm- 
ing Betsey,  2  Cranch,  64. 

Such  are  the  sentiments  of  Mr.  Duponceau,  whom  all  will 
admit,  I  take  it,  possesses  the  greatest  knowledge  of  general 
law  of  any,  in  the  U.  States,  and  may  be  said  to  be  the  greatest 
universal  jurist.  From  the  preceding  notes  we  have  seen 
what  his  idea  is  as  to  the  law  of  France,  on  the  subject  of 
the  ne  exuere  patriam^  which  is  a  phrase  unknown  to  all  law 
heretofore,  and  has  been  foisted  into  language,  as  he  ob- 
serves, in  the  place  of  the  ne  exuere  ligeantiam^  and  transfer- 
red by  the  British  from  the  feudalist  to  every  other  subject. 
But  it  is  not  the  law  of  France.  That  must  appear  from 
the  Napolean  code,  art.  17th. 

"  The  quality  of  a  French  subject  shall  be  lost, 

1.  By  naturalization  acquired  in  a  foreign  country. 

2.  By  the  acceptance,  not  authorized  by  the  emperor,  of 
public  functions  conferred  by  a  foreign  government. 

3.  Finally,  by  every  settlement  made  in  a  foreign  coun- 
try without  the  intention  of  returning." 

This  is  the  point  upon  which  it  ought  to  be  put,  the  ani- 
mus residendi.  If  Clark  had  alleged  this,  or  if  it  could 
have  been  made  out  against  him,  he  might  have  been  hung 
as  a  spy.  But  it  not  appearing  that  he  had  gone  to  Canada 
with  a  view  of  not  returning,  he  might  be  considered  a  citi- 

3  G 


41 8  Law  Miscellanies. 

zen  of  the  United  States,  and  proceeded  against  by  the  civil 
authority  as  guilty  of  treason. 

Upon  the  whole  it  is  not  consistent  at  the  present  day  with 
the  practice  of  nations,  or  with  even  that  of  Great  Britain, 
to  bring  up  this  isolated,  or,  I  might  rather  say,  insulated 
doctrine  of  feudal  origin,  and  force  it  upon  the  world.  In 
the  modern  state  of  national  society,  it  cannot  be  endured, 
or  carried  into  effect ;  it  is  an  outrage  upon  the  law  of  na- 
ture itself,  the  improvement  of  the  species,  and  the  happi- 
ness of  man.  It  is  the  offspring  of  a  Barbaric  code,  which 
had  its  foundation  in  the  military  establishments  of  feudal 
invaders,  and  may  be  said  to  be  functus  officio,  and  to  have 
gone  to  rest.  We  know  that  cannibals  existed  in  Great 
Britain  as  well  as  in  the  islands  of  the  South  sea  j  and  had 
it  been  the  law  still  to  cut  breasts  from  women,  and  eat  hu- 
man flesh,  would  that  bind  us  from  protecting  individuals 
from  amengst  that  people,  who  had  made  their  escape  and 
taken  refuge  on  our  shores  ?  In  a  case  short  of  life,  and 
liberty  only,  I  refer  once  more  to  the  case  of  Somerset  v. 
Stuart;  the  negro  slave  rescued  from  the  claim  of  his 
master,  and  set  free.  Because  the  law  could  know  of  no 
claim  over  a  human  being,  but  would  conn'tder  him  as  en- 
titled to  himself^  and  upon  that  principle  would  defend  him 
as  sui  juris,  the  moment  he  had  set  hi»  foot  upon  the  island-. 


These  arc  the  principal  distinctions  between  aliens,  denizens, 
a^hd  natives :  distinctions  which  it  hath  been  frequently  endea- 
voured>  since  the  commencement  of  this  century  to  lay  almost  to- 
tally aside,  l)y  one  general  naturalization  act,  for  all  foreign  pro- 
testants.     1  Bi.  Com.  374. 

THE  British  government  would  seem  to  have  no  scruple 
about  the   right  of  impatriation.     They  take  from  whence 
they  can  get,  without  any  restraint  but  considerations  of  po- 
licy, so  far  as  respects  themselves.     And  will  they  not  pro- 
tect bv  land,  orxvater^  those  xvhom  they  receive? 


Laav  Miscellanies,  41:9 

I  quote  a  sentence  from  a  very  able  publication  of  that 
conntry^  Coif/>ett^s  Weekly  Register,  Aug.  4,  1813.  While 
in  this  countrj'  that  editor  of  a  paper  here  was  no  squeamish 
advocate  of  British  claims ;  and  no  slight  abuser  of  Ameri- 
can character  in  general,  and  American  characters.  I  had 
been  sometimes  disposed  to  apply  to  that  writer,  in  my  own 
mind,  the  language  of  king  Henry  V.  in  the  case  of  Grey 
?.nd  Scroop. 

"  If  that  same  demon  that  hath  gulled  thee  thus, 

Should,  with  his  lion  gait  walk  the  whole  world, 

He  might  return  to  vasty  Tartar  back, 

And  tell  the  legions — I  can  never  Avin 

A  soul  so  easy  as  that  Englishman's." 

But,  as  Don  Quevedo,  in  his  Vision  of  Hell,  introduces 
tlie  Devil  preaching;  (and  it  could  not  be  denied,  but  that, 
though  not  a  doctor  of  the  Sorbonne,  his  doctrine,  in  that  in- 
stance, was  orthodox,)  and  was  justifying  himself  against 
the  charge  of  those  that  had  come  to  thjjt  place,  alleging 
that  he  had  tempted  them,  whereas  it  was  in  a  great  degree 
their  oAvn  evil  passions  that  had  impelled  them  ;  so  I  quote 
Cobbett,  though  not  admitting  him  to  be  an  authority  in  all 
cases ;  nor  is  what  he  says  of  much  consequence,  but  as  it  is 
ad  hominem,  of  the  English  practice  in  hnpatriati&n. 

"  It  should  be  considered,"  says  he,  "  that  our  own  laws 
make  exceptions  as  to  allegiance.  An  American  may  be- 
come a  British  subject  by  marrying  an  English  7voma?io 
From  the  time  he  marries,  the  law  gives  him  the  claim  to  all 
the  rights  enjoyed  by  Englishmen ;  and  the  same  law  im- 
poses upon  him  all  the  duties  of  an  Englishman,  This  law, 
of  which  no  gentleman  can  be  ignorant,  has  been,  not  long 
ago,  acted  upon  by  our  government,  as  I  understand,  in  this 
way.  An  American  was  impressed  in  our  fleet — He  was 
claimed  by  the  agent  of  thx  American  government,  as  an 
American  ;  and  his  discharge  demanded  accordingly.  The 
ansruer  zuas^  that  he  was  a  British  subject  having  married  an 
English  woman;  and  the  demand  of  his  discharge  was  re* 
fused  accordingly.''' 


420  Law  Miscellanies. 

This  vencraljle  body  of  men,  being  separate  and  set  apart  from 
the  i*est  of  the  people,  in  order  to  attend  more  closely  to  the  ser- 
vice of  Almighty  God,  have  thereupon  large  privileges  allowed 
them  by  our  municipal  laAvs.     1  Bl.  Com.  376. 

MINISTERS  of  religion  of  every  denomination^  are  ex- 
empted from  militia  duty  by  an  act  of  assembly  for  the  re- 
gulation of  the  militia,  of  the  9th  April,  1807.  And,  by  a 
decision  of  the  supreme  court  of  this  state,  July  12,  1813, 
nobis  dissentientibus,  "  a  clergyman  who  officiates  as  such 
is  not  bound  to  serve  as  a  guardian  of  the  poor,  notwithstand- 
ing he  so  far  attends  to  secular  business,  as  to  keep  a  store 
for  the  sale  of  merchandized  The  majority  of  the  court 
thought  themselves  warranted  in  considering  it  a  part  of  the 
common  law  introduced  from  England ;  or  a  usage  here, 
amounting  to  common  law  by  the  tacit  consent  of  the  people, 
to  exempt  the  clergy  from  all  secular  duties.  The  decision 
being  so,  I  am  content.  But  will  it  not  be  difficult  to  say 
vrho  are  ministers,  so  as  to  be  exempted  ?  Herman  Husbands 
preached  to  his  wife  j  and  affected  like  saint  Paul,  at  Rome, 
**  in  his  own  house,  to  receive  all  that  came  in  unto  him." 
Boden  Teugh's  Church  consisted  of  four  persons  ;  himself 
and  wife ;  and  his  son  and  wife.  His  grace  was  j 
*'  God  bless  me  and  my  wife  ; 

My  son  John  and  his  wife  ; 
We  four,  and  no  more ; 

and  let  all  the  rest  shift  for  themselves." 

There  wanted  but  a  denomination  to  exempt  these  ;  and 
the)'  might  have  taken  that  of  Husbandists ;  or  Teughites. 

Now,  that  by  this  decision  of  the  supreme  court,  it  has 
come  to  be  a  rule  of  law,  to  exempt  from  all  secular  duties, 
having  no  church  establishment  in  this  state,  some  criterion 
must  be  fixed  upon  to  distinguish.  I  should  take  it,  that  it 
might  be  the  living  by  the  altar ;  or  making  the  ministering 
in  holy  ordinances,  the  chief  employment  of  their  time. 

The  court  by  this  decision,  would  seem  to  have  gone  the 
whole  length  of  the  law  of  England.  May  it  not  then  follow, 
that  if  the  clergy  are  thus  privileged,  even  from  being  a 
(Tucirdian  of  the  poor,  which  is  a  duty  connected  with  a  cha- 


Law  Miscellanies.  421 

ritable  institution,  the  legislature  may  think  it  reasonable, 
that  they  be  excluded  from  eligibility,  or  appointment  to 
office  of  a  profitable  nature,  which  is  the  case  in  England. 
Perhaps  the  preachers  of  all  denominations  would  rather 
say,  in  the  language  of  the  merchants  to  the  king  of  France, 
Laissez  nous  faire ;  let  us  alone  ;  the  judges  have  not  served 
us,  by  distinguishing  farther  than  the  act  of  assembly  has  done. 


"  There  are  two  kinds  of  divorce,  the  one  total,  the  other  par- 
"  tial ;  the  one  a  vinculo  7natrimonu\  the  other  merely  a  inensa  et 
''  thoro."     I  BL  Com.  440.      . 

IN  England,  on  a  cause  arising  ex  post  factor  as  intolera- 
ble cruelty,  adultery,  a  perpetual  disease,  the  ecclesiastical 
court  administers  the  remedy  of  a  divorce  a  mensa  et  thoro  \ 
but  if  the  cause  existed  previous  to  the  marriage,  as  consan- 
guinity, corporeal  imbecility,  or  the  like,  a  separation  a  vin- 
culo matrimonii  may  be  decreed  :  2  Bl.  Com.  94. 

In  cases  even  of  adultery^  the  party  complaining  is  driven 
to  parliament  for  redress.  Coop.  Just.  534. 

In  Pennsylvania,  power  was  given  to  the  governor,  by  an 
act  of  ir05,  to  grant  divorce  from  bed  and  board,  to  the 
party  complaining  of  adultery.  But  this  power  has  been 
superseded  by  an  act  of  the  19th  Sept.  ITSS,  which  enables 
the  supreme  court  to  proceed,  on  complaint  of  a  party,  and 
grant  a  divorce  not  only  from  bed  and  board,  but  also  from 
the  bonds  of  matrimony  itself  where  "  either  party  at  the 
time  of  the  contract  was  and  still  is  naturally  impotent  or  in- 
capable of  procreation,  or  that  he  or  she  hath,  knowingly  en- 
tered into  a  second  marriage,  in  violation  of  the  previous 
vow  he  or  she  made  to  the  former  wife  or  husband,  whose 
marriage  is  siill  subsisting,  or  that  either  party  hath  com- 
mitted adultery,  or  wilful  and  malicious  desertion  and  ab- 
sence, without  a  reasonable  cause,  for  and  during  the  spaa; 
and  term  of  four  years." 

By  sec.  10,  it  is  provided,  that  the  supreme  court  may 
grant  the  wife  a  separation  from  bed  and  board,,  in  case  the 


42ii  X-Aw  Miscellanies. 


\ 


husband  shall  maliciously  either  abandon,  or  turn  his  wMc 
out  of  doors,  or  by  cruel  or  barbarous  treatment  endanger 
her  life,  or  offer  such  indignities  to  her  person,  as  to  render 
her  condition  intolerable,  or  life  burthensome,  and  thereby 
force  Ikt  to  withdraw  from  his  house  and  family. 

By  a  supplement,  passed,  2d  Ap.  1804,  the  same  powers 
are  given  also  to  the  judges  of  the  coi^rts  of  common  pleas. 

In  cases  that  are  out  of  these  provisions,  application  must 
be  made  to  the  legislature. 


The  t  ou3riLuuon  ut  feuds,  had  its  original  from  the  military  po-: 
licy  of  the  northern,  or  Celtic  nations . 

It  was  brou  gilt  by  them  from  their  own  countries,  and  continu- 
c4  in  their  respective  colonies,  as  the  most  likely  means  to  secure 
their  ncto  acquisitions.     2  Bl.  Com,  44. 

THAT  it  was  brought  from  their  ow7i  coimtries,,  I  incline 
to  doubt.  The  contrary  would  seem  to  appear  from  Cjesar ; 
Com.  de  bel.  Gal.  1.  6.  c.  12.  And  this  is  the  earliest  his- 
torical document  we  have  upon  the  subject.  Pleriquc  quuni 
aut  sere  alieno,  aut  viagnitudine  tributorum^  aut  injuria  poten- 
tiorum  premuntur,  sese  in  servitutem  dicunt  nobilibus.* 
From  this  we  find  that  taxes  were  paid;  and  thence  it  may 
be  inferred  that  the  tenure  of  lands  xvas  allodial^  not  military ^ 

Druides  a  bello  abesse  consueverunt,  neque  tributa  una 
cum  reliquis  pendunt.  Militice  vacationem  omniumque  re- 
rum  habent  immunitatem.f  From  hence  it  would  seem 
that  their  establishment  was  the  same  with  us  in  their  repub- 
lics ',  taxes,  and  militia  duty. 

Noticing  the  custo^ns  of  the  Germans,  1.  6.  c.  21.  he  says 
neque  quisquam  agri  modum  certum,  aut  fines  proprios  ha- 

*  The  greater  part  when  pKCssed  with  debt,  or  the  weight  of 
taxes  put  themselves  in  servitude  to  the  nobles. 

t  It  is  customary  for  the  Qruids  to  be  absent  from  war,  nor  do 
they  pay  taxes  with  the  rest.  They  have  an  immunity  from  mi- 
iHiaduty,  and  from  all  things. 


Law  Miscellanies.  423 

bet.  Sed  fnagistratiis  ac  principes,  in  annos  singulos,  gentl- 
bus  cognationibusque  hominum  qui  una  coierunt,  quantum 
eis,  et  quo  loco  visum  est,  attribuunt  agri,  atque  anno  post 
alio  transire  cogunt.*  Thus  we  see  not  only  that  the  assign- 
ment of  grouads  \Y2ls  of  the  civil  authority,  but  that  it  was 
done  by  the  magistrates,  and  principal  men  ;  the  word  prin- 
cipes  not  ducesy  is  used.  At  the  same  time,  there  was  no 
permanent    benejicmm  or  military  feud. 

But  Tacitus,  in  that  invalulable  monument  which  he  has 
left  us  on  the  manners  of  the  Germans,  gives  us  a  much 
more  minute  account  of  the  state  of  society,  and  customs 
amongst  these  people.  Arva  per  annos  mutant,  says  he.f 
Tacit,  de  mor.  c.  26. 

They  could  not  therefore  be  considered  as  having  each 
a  particular  portion  of  soil  to  which  they  were  attached ;  and 
for  which  they  owed  service,  homage,  and  allegiance*  The 
distribution  of  soil,  and  establishment  of  military  'services 
was  the  result  of  the  tiew  situation  in  which  these  were  pla- 
ced. This  new  division  of  property,  says  Doctor  Robertson, 
together  with  the  maxims  and  manners  to  which  it  gave  rise, 
gradually  introduced  a  species  of  government  formerly  un- 
knoxon.  This  singular  institution  is  now  distinguished  by 
the  name  of  the  feudal  system  :  1  Rob.  Cha.  V.  10. 

I  yield  therefore  to  the  opinion  of  those  who  maintain 
that  we  have  no  trace  of  this  system  in  the  Saxon  govern- 
ments. It  was  introduced  into  England  by  the  conquest  of 
the  Normans,  and  still  remains,  so  far  as  it  exists  in  Eng- 
land, a  monument  of  that  conquest. 

"  The  last  and  most  important  alteration,*'  says  Black - 
stone,  speaking  of  the  effect  of  this  conquest,  ''  both  in  our 
civil  and  military  polity,  was  the  engrafting  on  all  landed 
estatesy  a  few  only  excepted,  the   fiction  oi  feudal  tenure  i 

*  Nor  lias  any  one  a  certain  measure  of  land,  or  their  ownboun- 
davles  :  but  the  magistrates  and  chiefs  eve7'7j  year  assign  to  the 
tribes,  ai.d  kindred  tribes  that  come  together,  as  much  as  seems 
fjoodto  them,  and  in  what  place  ;  end  year  after  year  tlicy  oblige 
them  to  remove. 

^  TIk-v  rha'i'^e  grounds  every  y(;iv. 


424  Law  Miscellanies. 

which  drew  after  it  a  numerous  and  oppressive  train  of  ser- 
vile fruits,  and  appendages ;  the  genuine  consequences  of 
the  maxim  then  adopted,  that  all  the  lands  in  England  were 
derived  from,  and  holden  mediately  or  immediately  of  the 
crown,"  4  Bl.  Com.  418.  and  438.  He  adds,  "  these  slavish 
tenures,  the  badge  of  foreign  dominion."  A  legitimate  prin- 
ciple of  these  tenures,  was  the  doctrine  of  unalienable  and 
perpetual  allegiance.  It  was  not  necessary  that  the  emigrant  to 
these  shores  should  carry  that  principle  with  them  as  applica- 
ble to  their  situation,  having  left,  as  will  be  admitted,  this 
badge  of  servitude,  the  feudal  system  behind  them.  Those 
who  give  such  a  principle  countenance,  will  deny  that  it  is 
peculiar  to  this  law,  and  will  endeavour  to  give  it  a  founda- 
tion, as  Blackstone  would  wish  to  do,  on  the  general 
grounds  of  universal  law.  But  for  this  see  the  excellent  note 
of  judge  Tucker,  in  loco. 

How  far  this  system  has  been  broken  down  in  England, 
and  how  far,  what  I  consider  to  be  a  root  of  it,  remains,  this 
doctrine  of  inextricable  allegiance^  the  student  will  investi- 
gate. I  may  say  something  more  of  it  in  another  place. 
But  God  forbid  that  I  should  consider  it  as  introduced  here. 
This  vestige  of  the  iron  age,  and  vassalage  of  the  iron 
crown,  our  republican  institutions  have  put,  and  will  puV 
down. 

Si  qua  manent  sceleris  vestigia  nostri 
Irrita,  perpetua  solvent  formidine  terras. 


"  The  last  consequence  of  tenure  in  chivalry  was  escheat ; 
«  which  is  the  determination  of  the  tenure,  &c.  by  either  natural 
«  or  civil  means."     2  Bl.  Com.  72. 

EXTINCTION  of  inheritable  blood  by  civil  means  does 
not  take  place  in  Pennsylvania.  *'  No  attainder  shall  work 
corruption  of  blood,  nor  except  during  the  life  of  the  offen- 
der, forfeiture  of  estate  to  the  commonwealth."  State  Const. 
Art.  9,  Sec.  19. 


Law  MiscELLANi£s.  425 

In  default  of  heirs,  land  escheats  to  the  commonwealth. 
In  England  the  King,  who  is  esteemed  in  the  eye  of  the  law, 
the  original  proprietor  of  all  the  lands  in  the  kingdom,  de- 
rives a  part  of  his  ordinary  revenue  from  this  source.  1 
Bl.  Com.  303.  By  our  act  of  assembly  of  29  Sept.  1787, 
entitled  "  An  act  to  declare  and  regulate  Escheat,"  it  is  pro- 
vided. Sec.  1,  that,  "  if  any  person  who  at  the  time  of  his  or 
her  death,  was  seized  or  possessed  of  any  real  or  personal 
estate  within  this  commonwealth,  die  intestate,  without  heirs 
or  any  known  kindred,  such  estate  shall  escheat  to  the  com- 
monwealth subject  to  all  legal  demands  on  the  same." 

The  act  goes  on,  and  provides  that  "  no  escheat  of  real 
estate  for  want  of  heirs,  shall  be  where  brothers  or  sis- 
ters of  the  half  blood,  or  father  or  mother,  or  grandfather  or 
grandmother  of  the  deceased,  survive,  to  take  the  same." 

The  student  wull  at  once  see  that  this  provision  of  the 
act  changes  the  law  as  it  is  in  England,  where  land  will  ra- 
ther escheat  than  ascend  to  parents,  or  go  to  the  half  blood, 
or  to  blood  not  of  the  first  purchaser.  The  law  of  escheat 
is  regulated  by  the  law  of  distribution.  Escheat,  therefore, 
does  not  go  to  the  commonwealth,  in  prejudice  of  aliens, 
who  are  enabled  by  act  of  assembly  of  23  Feb.  1791,  to  ac- 
quire, to  take,  hold  and  dispose  of  real  estates,  by  devise,  or 
descent,  and  dispose  of  personal  estates  to  which  they  may  be 
entitled  by  testament,  donation  or  otherwise.  2  Smith's  laws, 
425. 

To   complete  the  title  b}'  escheat,  the   English   law  re- 
quires the  lord  to  enttr^  or  sue  out  a  rvrh  of  escheat. 

By  the  act  of  Pennsylvania,  1791,  2d  Smith,  42  ^,  provi- 
sion is  made  to  complete  title  by  escheat  to  the  common- 
wealth. Sec.  3.  Escheator  general  to  be  appointed,  with  de- 
puties. On  information  of  any  person  dying  without  any 
known  heirs,  the  escheator  general,  or  deputy  issues  his  pre- 
cept to  the  sheriff  or  coroner,  who  issues  his  summons  for  an 
inquisition  to  be  holden  to  ascertain  the  escheat,  which  in- 
quisition shall  be  transmitted  to  the  prothonotarv  of  the  su 
preme  court,  &c,  &c.  &c. 


42G  Law  Miscellanies. 


Hither  might  have  been  referred  the  advantages  which  usee! 
to  arise  to  the  king  from  the  profits  of  his  military  tenures, 
to  which  most  lands  in  the  kingdom  were  subject,  until  the  sta- 
tute 12  Car.  2.  c.  24,  which,  in  a  great  measure  abolished  them  all. 
2  Bl.  Com.  286. 

BUT,  a  doctrine  which  I  assert  to  be  a  relict^  to  pun  upon 
a  word,  of  this  truly  feudal  system,  and  a  principle  of  the 
military  tenures,  is,  that  a  subject  cannot  throw  off  his  alle- 
giance when  he  quits  the  feud.  This  the  government  of  Eng- 
land,* if  not  the  jurists,  assert  not  to  be  the  offspring  of  that 
system,  but  to  stand  upon  a  broader  base,  that  of  the  common 
law.,  antecedent  to  the  introduction  of  feuds.  They  even 
attempt  to  prove  it  upon  the  basis  of  universal  law.  They 
are  willing  to  admit,  with  all  their  eulogium  on  the  rights  of 
Englishmen,  that  an  individual  can  no  more  escape  from  that 
kingdom,  than  a  dog  with  a  collar  about  his  neck,  but  is  lia- 
ble to  be  restrained  :  or  than  if  he  were  a  slave  that  had  escap- 
ed ex  ergastuloy  or  work-house  among  the  Romans.  As  be- 
tween the  government,  and  the  individual,  it  is  one  thing ;  but 
when  the  protection  of  a  foreign  government  attaches,  it  is 
another.  As  for  the  individual,  it  will  be  in  vain  for  him  to 
t?i[\ioithtnatitr  alright.,  and  liberty  of  an  Englishman,  when 
the  crocodile  has  him  in  his  jaws.  But  as  to  the  foreign  go- 
vernment which  has  received  him,  the  only  question  will  be 
the  right  to  protect  him,  and  the  power.  As  to  the  right  to 
protect  him,  I  may  consider  it  something  farther,  in  the 
course  of  this  publication.  As  to  the  power,  I  leave  it  to 
our  administration  ;  and  can  only  say,  that  being  myself  per- 
suaded of  the  right,  I  would  give  it  up  only  with  my  last 
breath. 

Nisi  cum  vita  simul  amittet. 

It  is  a  principle,  of  the  application  of  which  the  British 
are  not  aware,  when  they  insist  upon  it. 

Nescis  quam  legem  in  te  sanciris  iniquam. 

*  There  would  seem  to  be  a  chain  still  fastened  to  the  foot  ol" 
that  people. 


Law  Misf:ELT,ANiEs.  427- 

Does  It  not  operate  as  in  the  nature  of  an  estoppel  to  them, 
ihat  they  themselves  vnpatr'iate  ? 

Will  they  venture  in  the  face  of  this,  or  without  having 
such  a  face,  to  carry  that  claim  into  effect,  so  far  as  respects 
the  protection  of  foreign  nations.  They  did  not  think  it  pru- 
dent in  the  revolutionary  war,  in  the  case  of  general  Lee, 
nor  in  the  case  of  Napper  Tandy,  nor  will  they  think  it  pru- 
dent in  any  case  in  the  present  war.  They  have  the  exam- 
ple of  Napoleon  before  them,  as  to  this  claim  of  perpetual 
subjection ;  but  the  example  of  the  iron,  or  any  other  crown, 
will  not  paralize  the  American  spirit,  in  contending  for  the 
freedom  of  mankind,  in  opposition  to  this  imprisonment  of 
any  one  in  an  enchanted  island.* 


"  As  to  the  power  of  charging  lands  with  the  debts  of  the 
owner."     2  Bl.  Com.  289. 

BLACKSTONE  here  speaks  of  the  lien  of  a  judgment 
as  in  the  nature  of  a  pawn.  The  judgment  binds,  and  gives 
a  pledge,  subject  to  discharge  by  the  payment  of  the  debt ; 
and  such  judgment  binds  without  limitation  of  time.  But  by 
an  act  of  assembly  of  4th  April,  1798,  it  is  enacted,  "  that  no 
judgment  now  on  record  in  any  court  within  this  common- 
wealth, shall  continue  a  lien  on  the  real  estate  of  the  person, 
against  whom  the  same  has  been  entered,  during  a  longer 
term  than  five  years,  from  and  after  the  passing  of  this  act, 
unless  the  person  who  has  obtained  such  judgment,  or  his 
legal  representatives,  or  other  persons  interested,  shall,  with- 
in the  said  term  of  five  years,  sue  out  of  the  court,  wherein 
the  same  has  been  entered,  a  writ  of  scire  facias ^  to  revive 
the  same.*' 

Sec.  2,  provides  "that  no  judgment  hereafter  entered 

*  See  Mr.  Duponceau's  note,  page  175,  to  his  translation  of 
liinkershoeck's  Quest,  jur.  pub. 

"  It  is  lawful  to  emigrate  from  France,  and  it  is  so  ivhcrevcr 
the  country  is  not  a  firl^on.'" 


42S  Law  Miscellanies. 

&c.  shall  continue  alien,  &c.  during  a  longer  term  than  five 
years,  &c.  unless  the  person,  &c.  shall,  within  the  said 
term  of  five  years,  sue  out  a  writ  of  scire  facias,  to  revive 
the  same." 

Sec.  3.  provides  for  the  proceedings  to  revive  a  judg- 
ment, viz.  "  that  all  such  writs  shall  be  served  on  the  terr- 
tenants,  &c.  and  also  on  the  defendant,  &c.  and  where  the 
land  is  not  in  th^  immediate  occupation  of  any  person,  and 
defendant,  &c.  not  to  be  found,  proclamation  shall  be  made 
in  open  court,  at  two  succeeding  terms,  &:c.  and  the  court, 
unless  sufficient  cause  to  prevent  the  same  is  shewn  at  or  be- 
fore the  second  term  subsequent  to  the  issuing  of  such  writ, 
shall  direct  and  order  the  revival  of  any  such  judgment,  du- 
ring another  period  of  five  years,  and  so  from  period  to  pe- 
riod." 

Sec.  4.  disables  from  commencing  or  maintaining  suit  on 
bonds  given  as  sureties  for  public  officers,  after  the  expira-.. 
tion  of  seven  years  from  the  time  at  which  the  cause  of  action 
shall  have  accrued. 

The  question  has  arisen  under  this  act  whether  the  pur- 
chaser of  land  which  had  been  subject  to  the  lien  of  ajudg- 
ment,  and  who  had  not  notice  of  the  judgment,  was  in  any 
better  situation  than  the  plaintiff  in  the  judgment.  By  the 
opinion  of  the  supreme  sourt  of  this  state  in  the  case  of  the 
bank  of  North  America,  v.  Fitzimmons,  it  was  decided, 
that  notice  or  not  notice  had  nothing  to  do  with  the  act.  3 
Bin.  343. 

Mr.  Smith  in  his  note  to  this  act,  3d.  332,  takes  no  notice 
of  this  decision ;  whence,  it  is  presumable  that  it  was  made 
prior  to  the  decision  in  3  Bin.  He  gives  at  full  length  the 
opinion  of  judge  Washington  of  the  circuit  court  of  the  Uni- 
ted States,  which  was  impliedly  considered  by  the  state  judges 
(Tilghman  and  Brackenridge)  to  be  erroneous,  as  having 
gone  upon  the  mistake  of  an  assimulation  to  the  statute  of 
enrolments,  registry  act,  &c.  in  England.  Judge  Yeates  be- 
ing a  stock-holder  in  the  bank,  did  not  give  an  opinion. 


Law  Miscellanies.  42*J 

The  next  species  of  subordinate  magistrates,  whom  1  am  to 
consider,  are  Justices  of  the  Peace.     1  Bl.  Com.  349. 

THERE  is  no  civil  jurisdiction  given  to  the  justice  of 
the  peace  by  the  law  of  England ;  but  his  authority  is,  as  the 
title  imports,  merely  in  matters  oj  the  peace.  But  from  an 
early  period  in  Pennsylvania,  jurisdiction  of  civil  C07itrover- 
sies  had  been  given  by  successive  acts  of  assembly;  and 
from  time  to  time,  enlarging  the  sphere  of  jurisdiction,  as  to 
the  nature  of  the  complaint  made  ;  or,  as  to  the  sum  demand- 
ed, whether  on  a  contract,  or  in  the  case  of  trespass.  The 
constitution  of  the  state  recognizes  this,  by  Art.  V.  viz.  the 
judicial  power  of  this  commonwealth  shall  be  vested,  8tc. 
Sec.  &c.  injustices  of  peace.  This  would  seem  to  exclude, 
VI  termini,  the  vesting  single  justices  with  any  other  juris- 
diction than  that  of  the  peace.  But  the  constitution  must  be 
supposed  to  use  the  term  according  to  the  well  known,  po- 
pular acceptation  of  it,  as  comprehending  matters  of  a  civil 
jurisdiction,  as  well  as  of  the  peace.  The  jurisdiction  of  the 
justices  of  the  peace,  therefore,  extends  beyond  mere  mat- 
ters of  the  peace,  and  comprehends  civil  matters,  in  like 
manner  with  the  county  court,  in  England,  "which  is  held 
every  month,  or  oftener,  by  the  sheriff,  intended  to  try  little 
causes  not  exceeding  the  value  of  40  shillings.'*''  So  that  the 
civil  jurisdiction  of  justices  is  derived,  entirely  from  positive 
law;  and  was  originally  confined,  as  the  county  court  in 
England,  to  d.-^bts  or  demands  imder  40  shillings.  Chief  Jus- 
tice Hale,  in  his  considerations  touching  the  amendment,  or 
alterations  of  lav.  s.  Chap.  7,  (Hargrave's  Law  Tracts,  249,) 
gives  the  reasons  of  such  jurisdiction  in  small  matters  to  the 
county  court,  and  suggests  an  increase  of  jurisdiction.  The 
heading  of  the  chapter  is,  "  The  present  inconveniences  re- 
lating to  courts  of  justice  ;  and  first  touching  the  county 
court."     He  then  proceeds; 

"  By  the  true  and  wise  constitution  of  this  kingdom,  suites, 
where  the  debt  or  damage  amount  not  to  40s.  v.ere  not  to  be  de- 
termined in  the  courts  of  Westminster,  unless  a  title  of  land  came 
in  q':c':tion ;  but  they  v.'ere  to  be  determined  in  the  county  court, 


430  Law  Miscellanies. 

hiriiclred  cf>yrt,  or  court  baron.  And  this  was  the  ancient  law. 
Vid.  ntut.  Glocest.  6.  E.  I.  At  that  time  40s.  was  a  considera- 
ble sum,  1.  in  respect  of  the  intrinsecal  value  of  the  coin,  for  then 
20d.  made  an  ounce  of  silver,  and  at  this  day  it  is  5s.  viz.  sixty 
pence,  and  upon  that  single  account  forty  shillings  then,  ariseth 
now  to  six  pounds.  But  2.  that  was  not  all ;  for,  as  I  may  say,  mo- 
«cy  was  at  that  time  dearer  than  it  is  now,  because  there  was  not 
so  much.  And  hence  it  is,  that  the  prices  of  all  things  at  this  day, 
are  mucii  dearer  now  than  they  were  then ;  because  money  is 
much  more  plenty  now  than  it  was  then,  as  it  will  appear  to  any 
that  looks  into  the  proclanxations  of  prices  and  commodities,  both 
in  the  beginnings  of  iters  and  p'arliaments  in  the  times  of  E.  1.  and 
E.  2.  Vid.  Rot.  Pari.  8.  E.  2.  n.  29.  in  schedula,  a  proclama- 
tion for  the  price  of  victuals,  viz.  a  fat  ox  fatted  with  corn,  24s. — 
a  fat  cow,  12s. — a  fat  hog,  40d. — a  fat  mutton  unshorn,  20rf. — a 
fat  mutton  shorn,  1 4^.-— a  fat  hen,  Id. — 24  eggs,  Id.  which  eviden- 
ces a  great  advance  of  the  price  of  things  at  this  day,  besides  the 
advance  of  the  extrinsecal  denomination  of  money. 

"  By  this,  that  hath  been  said,  it  is  apparent,  I .  That  it  was 
the  wise  constitution  of  the  common  law,  to  keep  small  suites 
from  the  great  courts  at  Westminster.  2.  That  if  an  equal  pro- 
portion in  the  denomination  of  small  suites  were  held,  that  if  40*. 
were  the  lowest  measure  of  the  suites  to  bs  commenced  in  these 
great  courts,  at  least  ten  pounds  would  be  the  lowest  measure  at 

this  day. 

"  And  yet  it  is  very  apparent  to  any  man  that  converseth  with 
business,  that,  divide  the  suites  that  come  down  to  the  assizes  to  be 
tryed  at  the  great  courts,  near  one  half  thereof  are  under  40s.  at 
least  in  some  counties,  besides  those  many,  that  are  ended  upon 
process  serving  and  before  they  come  to  tryall. 

"  And  yet  there  is  not  one  of  those  suites  brought  to  tiyall,  but 
Ht  this  day  stands  each  of  the  parties  in  at  least  10/.  but  if  it  pass 
for  either,  there  is  an  allowance  that  recovers  four  times  as  much 
cost,  as  the  principal  amounts  to,  viz.  at  least  eight  pounds. 

"  And  by  this  means,  1st.  Suites  are  multiplied.  2.  Expen- 
ses and  charges  are  multiplied,  3.  Attorniesand  solicitors  multi- 
plied. 

«  There  have  been  several  attempts  in  parliament  to  remedy 
this,  viz.  the  statute  of  43.  Eliz.  cap.  6.  21.  Jac.  cap.  16.'  But 
ihev  have  proved  ineffectual,  partly  by  the  mutual  connivance  of 
^.tlorncvs  and  pracllcers,  to  decline  the  benefit  of  these  statutes, 
because  it  would  abridge  their  employment  and  profit ;  partly  by 


Law  Miscellanies.  431 

the  influence  of  officers  upon  the  practlcers  in  the  several  courts, 
lest  by  that  means  their  offices  should  decay ;  but  principally,  be- 
cause, as  the  present  constitution  of  the  county  courts  and  hun- 
dred courts  stands,  it  were  a  kind  of  extremity  to  put  these  sta- 
tutes fully  into  execution ;  for  it  were  to  drive  men  from  the  courts 
of  Westminster,  for  small  matters  where  they  may  have  justice, 
unto  inferior  jurisdictions,  where  as  they  are  at  present  constituted, 
they  are  like  to  have  little  or  none. 

"  The  first  business,  therefore,  would  be  to  rectify  inferior  ju» 
risdictions ;  and  then  we  may  with  probable  safety  and  advantage, 
abridge  the  courts  of  Westminster  from  these  trivial  and  inconsi- 
derable suites,  where  the  ordmary  costs,  that  arc  given  to  the  par- 
ty that  recovers,  exceed  the  value  of  what  he  recovers.  Tlierc- 
fore  I  propound, 

"  ( 1 .)  That  the  county  court  may  be  established  in  this  manner 
in  all  places.  1.  That  there  be  in  every  county  court,  a  person 
learned  in  the  laws,  a  barrister  of  at  least  seven  years  standing, 
that  may  be  the  steward  of  the  county  court,  by  grant  from  the 
king,  quamdiu  ae   bene  geeserit,  with  a  fee  of  per  ann.  out  of 

the  perquisites  of  the  count}-.  2.  That  the  steward  do  try  the  cau- 
ses at  issue  in  che  court  by  jury  of  twelve  men,  and  be  the  judge 
to  give  judgment  therein.  3.  That  the  perquisites  of  the  coitrts 
be  answered  to  the  king.  4.  That  there  be  also  a  sworn  clerk  to 
make  and  keep  the  records.  5.  That  there  be  a  select  number  of 
attorneys,  not  exceeding  the  number  of  six  in  any  one  county,  to 
be  deputed,  and  upon  cause  to  be  removed,  by  the  chief  justice  of 
the  common  bench  for  the  time  being;  and  none  other  to  be  the 
immediate  attorneys  to  the  court. 

"  (2.)  That,  although  in  a  proportion  as  hath  been  observed, 
10/.  now  is  less  than  40*.  in  the  time  of  Ed.  1.  yet  I  should  not  pro- 
pound so  high  a  measure  for  them,  but  they  should  hold  plea  of 
any  debt,  or  debt,  or  damage,  of  the  value  of  si.  where  the  title  of 
freehold,  or  lease  for  years,  comes  not  in  question. 

"  (3.)  That  where  the  sum  in  demand  exceeds  not  that  sum, 
the  cause  should  not  be  removed  from  thence  by  any  rtcordari^ 
certiorari,  fione,  or  habeas  corfius,  unless  upon  oath  made,  that  the 
title  of  the  land  will  come  in  question ;  and  if  upt^ii  that  surmise 
and  oath,  a  plaint  or  suit  be  removed  by  either  paity,  and  it  appear 
to  be  untrue  upon  the  pleading  or  triull,  the  j)arly  removing  the 
suit  to  pay  double  costs. 

'•  (1."^  That  the  processes  be   onlv  V,\  sommons,  attachment. 


■t^^  Law  Migcellaxies. 

and  distress,  and  the  execution  hy  Jieri facias  or  kvunjacui,  uii<t 
not  otherwise. 

"  This  being  thus  settled,  I  should  propound,  that  the  courts  at 
Westminster  should  not  hold  plea  of  any  suit  for  debt  or  dariages 
under  51.  unless  where  the  title  of  lands  is  concerned  ;  and  -that  if 
upon  the  triall  of  any  such  cause,  or  otherv/ise  it  shall  appear  the 
debt  or  damages  amount  not  to  5l.  the  plaintiff  should  recover  no 
more  costs  than  damages ;  and  if  it  be  found  for  the  defendant, 
that  then  he  recover  double  costs. 

"  The  greatest  danger  imaginable  in  this  is,  that  it  may  give 
a  handle  to  the  erecting  of  country  judicatures  to  the  countermin- 
ing of  the  kingdom.  And  I  must  confess,  were  this  to  be  the  ef- 
fect of  it,  I  think  it  were  the  most  pernicious  thing  imaginable. 

"  But  certainly  this  is  but  a  vam  fear,  unless  we  were  in  such 
giddy  times,  that  could  not  be  contented  with  an  ease  and  conve- 
nience to  the  people,  without  destroying  the  law  and  the  govern- 
ment of  the  kingdom.  For  was  not  that  law  the  same  in  the  time 
of  E.  1.  and  ever  since,  as  to  the  point  of  the  jurisdiction  touching 
matters  under  40s.  and  hath  it  any  time  introduced  that  inconve- 
nience ?  That  which  is  propounded,  is  but  to  ease  the  county  court 
of  what  makes  it  unuseful  and  burthensome  to  the  people,  and  to 
render  it  serviceable  and  convenient,  and  to  disburthen  the  courts 
of  Westminster  of  these  suits,  wherein  the  costs  to  be  recovered 
exceed  the  value  of  the  thing  in  demand.  Indeed  there  are  some 
few  alterations  from  the  ancient  constitution. 

"  1.  In  the  judge  ;  for  the  truth  is,  I  think  a  person  acquainted 
with  the  law,  and  sworn  in  the  office,  is  fitter  to  be  trusted,  than 
a  few  ignorant,  and  it  may  be,  concerned  suitors. 

"2.  In  the  triall,  Avhich  I  would  have  by  the  oath  of  twelve 
men ;  and  so  in  some  counties  it  is  used ;  though  in  others,  the 
triall  of  the  fact  is  by  witnesses,  and  the  opinion  of  the  major 
part  of  the  suitors  ;  in  others  by  wager  of  law.  I  hold  the  triall 
by  jury  returned,  the  best  triall. 

"  3.  In  the  sum,  which  I  have  estimated  to  5l.  which  is  not  so 
mucli'even  in  intrinsecal  value  as  40s.  in  the  time  of  E.  1 .  And 
upon  the  same  account,  the  freehold  of  jurors  hath  been  raised. 
First  in  the  time  of  E.  1.  it  was  20s.  then  by  2.  H.  5.  it  was  40.s. 
in  some  cases ;  then  by  27.  Eliz.  it  was  raised  to  41.  and  since  to 
20/. 

"  If  men  mdeed  will  be  giddy  and  unsteady,  and  if  wc  should 
suppose  parliaments  not  to  be  wisely  sensible  of  their  own,  and  the 
public  concern,  mcr.  mi-'v  suppose  that  5f.  may  in  time  arise  to  be 


Law  Miscellanies.  433 

50/.  and  so  the  courts  of  Westminster  be  destroyed.  He  that  sup- 
poseth  this,  may  suppose  things  yet  more  dreadful.  But,  in  my 
understanding,  if  things  were  reduced  to  this  state  with  the  county 
court,  1.  It  would  be  a  great  ease  to  the  people.  2.  It  would  dis- 
burthen  Westminster-hall  of  many  suites,  which  are  indeed  a  re- 
proach to  the  honour  and  dignity  of  it.  3.  It  would  prevent  mul- 
titudes of  oppressive  suites  ;  many  men  suing  for  trifles,  because, 
if  they  recover,  the  costs  will  crush  and  undo  the  defendant,  being 
oftentimes  forty  times  more  than  the  principall.  4.  It  would  ac- 
commodate the  county  court,  to  be  admirably  auxiliary  and  sub- 
servient to  the  great  courts  at  Westminster.  Writs  of  enquiry 
of  damages,  might  l)c  there  executed  by  the  sheriff,  and  in  the 
presence,  and  with  the  assistance  of  the  steward,  and  not  by  a  ju- 
ry packed  by  the  under  sheriff  in  a  corner.  Here  outlawries 
might  be  proclaimed,  tables  of  them  set  up,  and  tables  of  fines, 
and  infinite  more  accomodations  ;  because  it  would  be  a  place  of 
note  and  resort,  and  things  would  be  managed  with  order,  and  much 
more  notoriety,  than  it  is  possible  they  can  be  now  as  the  county 
court  is  constituted. 

"  That  which  seems  to  be  the  greatest  objection  against  this 
is,  that  it  will  multiply  suites,  the  jurisdiction  being  cheap  and  at 
hand. 

"  I  answer,  that  it  is  regularly  true,  that  this  doth  miiltiply 
suites,  but  yet  these  allaycs  with  it. 

"1.  If  it  Avere  admitted,  yet  in  respect  of  the  sum  propounded, 
it  is  apparently  necessary,  that  some  remedy  should  be  provided 
for  such  sums:  and  it  is  apparently  unreasonable, that  they  should 
be  driven  to  sue  at  W^estminster  ;  for  if  the  suit  be  necessary,  he 
shall  lose  by  his  suite,  though  he  recover,  in  respect  of  the  ex- 
pence  he  shall  be  put  to. 

"  2.  Possibly  attliis  day,  many  trifling  and  causeless  suites  are 
commenced  at  Westminster,  to  undo  a  defendant,  with  the  costs 
in  case  of  a  recovery,  or  to  put  him  to  great  expence ;  which 
would  not  be  if  the  suits  of  this  nature  were  in  the  county  court 
thus  qualified,  where  the  defence  would  be  as  cheap  for  the  de- 
fendant, as  the  suit  is  for  the  plaintiff";  and  the  costs  of  recover}- 
would  not  probably  exceed  the  damage,  but  be  probably  less,  which 
would  be  no  great  encouragement  to  vexation. 

"  3.  I  suppose,  that,  in  the  progress  of  this  discourse,  some- 
•..hing  will  be  proposed  evidently  necessary  to  discourage  vexatious 
lites,  as  well  in  this  as  in  all  other  jurisdictions. 

3  I 


434  Law  Miscellanies. 

-"  4.  But  if  the  judge  of  the  court  be  such,  as  lie  oug^ht  to  be 
for  his  learning  and  integrity,  and  the  practiccrs  sober  and  credi- 
ble men,  vexatious  suites  will  not  receive  much  countenance. 

"  I  shall  conclude  this  business  with  this  farther  observation, 
that  by  this  means  the  students  and  professors  of  the  law,  which 
are  now  generally  driven  or  drti\\T»  up  to  London,  so  that  there  are 
scarce  any  left  in  the  country,  will  have  some  encouragement  to 
reside  in  the  country,  and  the  country  not  left  to  the  management 
of  attornies  and  solicitors." 

The  above  extract  will  give  a  view  of  the  grounds  upon 
which  that  great  man,  sir  Mathew  Hale,  proposed  extending- 
the  jurisdiction  of  the  county  courts,  as  to  the  sum  In  de- 
mand, except  as  to  cuses^  7vhere  t/ie  title  to  land  came  in  ques- 
tion ;  and  this  in  consideration  of  the  depreciation  of  moneij. 
There  will  be  seen  also,  his  unwillingness  to  take  away  the 
trial  by  jury.  It  is  this  very  kind  oi  county  court  of  common 
plcas^  that  we  had  in  Pennsylvania  prior  to  the  revolution, 
consisting  of  justices  of  peace,  and  since  perfected  under 
our  present  constitution  by  giving  a  person  learned  in  the 
law  as  president.  But  Chief  Justice  Hale  says  nothing  of 
annexing  a  civil  jurisdiction  to  the  office  of  justice  of  tht 
peace,  to  act  without  a  jury. 

It  was  highly  questioned  by  governor  M'Kean,  Avhether 
the  increasing  the  jurisdiction  of  the  justices  did  not  aiFect 
the  right  of  the  trial  by  jury  a»  heretofore^  and  which  was 
secured  by  the  constitution ;  and  he  even  went  so  far  as  to 
put  a  negative  upon  a  bill,  which  afterwards,  passed  into  a 
luw,  by  the  constitutional  two  thirds  of  both  houses  of  the 
legislature. 

The  question  was  afterwards  brought  before  the  supreme 
court,  as  to  the  constitutionality  of  the  law,  in  the  case  of 
Kmerick  v.  Harris,  1  Binney,  416,  to  the  observations  in 
which  case  I  refer  the  student.  I  will  acknowledge,  that  I 
have  been  at  all  times,  more  friendly  to  an  increase  of  the 
jurisdiction  of  the  justices,  than  to  the  system  of  unmanaga- 
blc,  and  desultory  arbitrations.  I  would  check  them  by 
taking  away  rm  c/j/'ffl/yrow  hi?n  entering  the  rule  of  refer' 
cuccy  and  compelling  the  adversary  to  take  that  tribunal^  im- 
li'x.'?  in  aco.it;  aUo'(ved  hi;  the  court. 


Law  Miscellanies.  435 

I  am  friendly  to  a  reasonable  increase  of  the  civil  ju' 
iisdictton  of  the  justices;  and  therefore  I  approve  of  the  pa- 
tronage o^  the  general  assembly  to  Mr.  Bache,  by  authori- 
zing the  governor  to  subscribe  for  1500  copies  of  his  Manu- 
al. I  think  it  money  well  laid  out;  and  rvould  have  no  cb- 
Jcction  to  them  follorving  xip  their  bloxos  in  that  ivay^  and  axi- 
thorizing  the  governor  ^  or  the  speaker  of  each  house  totakt\for 
the  use  of  the  members^  and  the  officers  of  governments  a  copy^ 
each^of  this  publication^  which  will  about  pay  me  for  what  I 
allow  my  amanuensis  for  transcribing ;  viz.  1 75  copies  from 
the  printer,  in  boards^  and  which  is  all  I  get  for  this  edition 
of  the  work. 


''  An  estate-tail  m'\y  be  barred^  or  destroyed  by  a  fine,  by  a 
•.ommon  recovery,"  Sec.     2  Bl.  Com.  116. 

BY  an  act  of  27  Jan.  1749-50,  it  was  provided  "  that 
thies  and  common  recoveries  heretofore  levied  and  suffered 
within  the  province  of  Pennsylvania,  or  which  shall  hereaf- 
ter, Sic.  duly  and  according  to  the  common  and  statute  laws 
of  England,  Sic.  shall  be  of  like  force  and  effect,"  &c. 

An  act  of  16th  Jan.  1799,  reciting  that  the  mode  of 
conveyance  by  common  recoveries  is  attended  xvith  a  heavy 
expence^  provides  in  Sec.  1.  "  that  any  persons  seized  of  any 
estate  tail  in  possession,  reversion  or  remainder,  shall  have 
full  power  to  convey,  occ.  by  such  manner  and  form  of  con- 
veyance or  assurance,  as  any  person  seized  of  an  estate  in 
fee-simple  may  grant,  bargain,  sell,  &c.  and  all  such  grants 
5tc.  shall  be  good  and  available  against  all  pejsons  whom 
the  grantor,  &c.  could  debar  by  any  mode  of  common  reco- 
very, or  by  any  means  whatever.'* 

Sec.  2.  enables  any  person  who  has  sold  an  estate-tail  to 
a  bona  fide  purchaser,  for  a  valuable  consideration,  to  confirm 
such  sale  by  new  deeds  executed  according  to  the  act,  pro- 
vided that  the  intention  to  bar  shall  be  stated  in  the  deedo 


436  Law  Miscellanies. 

I  have  already  stated,  ante,  beginning  page  143,  reasons 
why  I  would  think  it  not  unadvisable  to  have  the  entailing 
of  estates  altogether  taken  away. 


"  By  the  statutes  31  Hen.  8,  c.  1,  and  32  Hen.  8,  c.  32,  joint 
tenants,  either  of  inheritances,  or  other  less  estates,  arc  compella- 
ble by  writ  of  partition  to  divide  their  lands."     2  Bl.  Com.  185. 

THESE  statutes  are  reported  by  the  judges  to  be  in 
force  in  Pennsylvania. 

By  an  act  "  concerning  writs  of  partition,"  passed  11th 
April,  1799;  "the  supreme  court  shall  have  original  juris- 
diction over  the  whole  commonwealth,  as  to  the  granting 
and  proceeding  upon  writs  of  partition,  at  the  suit  of  any 
tenant  in  common,  joint-tenant  or  co-partner." — And  by  an 
act  passed  28th  March,  1806,  "  the  respective  county  courts 
of  common  pleas,  shall  have,  and  exercise  all  the  powers 
which  the  supreme  court  had  and  posessed  by  the  above  act, 
as  to  the  granting  and  proceeding  upon  writs  of  partition," 
&c.     See  3d  Smith's  laws,  388. 

By  Stat.  8  and  9  Will.  3,  c.  31,  no  plea  in  abatement 
shall  be  admitted  in  any  suit  for  partition  of  lands  ;  nor  shall 
the  same  be  abated  by  reason  of  the  death  of  any  tenant. 
S  Bl.  Com.  302. 

This  statute  of  William  has  not  been  reported  by  the 
judges  to  be  in  force;  but  by  an  act  passed  7th  April,  1807, 
Sec.  4,  "  no  plea  in  abatement  shall  be  admitted  or  received 
in  any  suit  for  partition,  nor  shall  the  same  be  abated  by 
reason  of  the  death  of  any  defendant." 


Law  Miscellanies.  437 

Where  there  is  aiiy  the  least  probable  cause  to  found  such 
prosecution  upon.     3  Bl.  Com.  126. 

PROBABLE  cause  which  shall  excuse  in  an  action  for 
a  malicious  prosecution ;  or,  in  other  words,  shall  consti- 
tuj:e  a  defence  in  such  an  action,  is  sometimes  said  to  be  a 
mixed  question  of  fact  and  law*  I  gave  my  sentiments  on 
that  head,  on  a  motion  for  a  new  trial  in  a  case  of  Lyon 
and  Fox ;  and  to  which  I  will  refer,  having  given  it  to  Mr. 
Browne,  amongst  other  papers,  with  a  view  to  his  reporting  it. 
In  that  opinion  I  totally  rejected  the  idea,  or  expression  of 
calling  it  a  mixed  questioti ;  for  it  was  calculated  to  mislead, 
and  did  mislead  in  the  argument ;  and  it  became  necessary 
to  analyze  and  explain  this  principle.  Lyon  had  been 
committed^  in  the  first  instance,  and  bail  refused  by  the 
magistrate  committing ;  and,  in  the  second  instance,  en  a 
habeas  corpus  by  the  chief  justice,  and  other  judges  in  term, 
on  a  hearings  bail  was  refused,  and  he  was  remanded  to  cus- 
tody, 1[  probable  cause  was  a  question  of  latv^  this  must  be 
considered  as  concludiyig^  so  far  as  to  stand  between  the  pro- 
secutor Fox,  and  Lyon  the  accused.  It  was  holden  by  me 
that  it  did  not  stand  in  the  way  of  shewing  b'efot  e  a  jury^ 
that  notwithstauding  all  this,  no  probable  cause  existed  ;  that 
\ht  weakness  or  wickedness  of  a  prosecutor;  and  what  was 
more,  the  error  of  judges  in  thinking  there  was  probable 
cause,  did  not  affect  the  right  of  Lyon  on  a  trial  before  a 
jury  to  shew  there  was  no  probable  cause.  And  this  doc- 
trine I  have  understood  to  have  been  approved  by  the  whole 
profession. 

For  my  reasoning  and  authorities  I  refer  to  the  report 
which  Mr.  Browne  may  publish.  I  add  further,  that  even 
where  a  grand  jury  finds  a  bill^  in  addition  to  all  that  judges 
have  done,  in  committing,  it  is  still  enquirable  whether  there 
was  reasonable  ground  for  the  prosecution ;  and  it  can  go  only 
in  mitigation  of  damages,  even  where  nothing  has  been  kept 
back  by  the  prosecutor,  in  the  investigation  of  xht  probability 
of  a  cause  for  commitment.  I  am  not  to  be  at  the  mercy 
ofa  judge,  or  a  whole  bench,  who  at  the  instance  of  a  prose- 


438  Law  Miscellanies. 

cutor,  have  thought  there  was  probable  cause.  For  I  cannot 
sue  them  ;  or  have  redress,  otherwise  than  against  him.  His 
misconception  will  not  justify,  by  alleging  the  act  of  those 
who,  pro  hac  vice  only,  and  called  upon  by  him,  are  to  judge. 
lu  the  case  of  Lyon  v.  Fox,  a  new  trial  was  granted  j 
but  on  the  ground  only  of  ?xc^.s52t>?  damages.  We  heard  n© 
more  of  it ;  I  presume  there  was  a  compromise. 


"An  assize  of  nuisance." — 3  Dl.  Com.  220. 

"  A  REMEDY  which  has  been  long  antiquated  in  Eng- 
land, and  which  if  ever  pursued  in  this  state,  has  certainly 
not  beei}  used  more  than  once,  or  twice  :  indeed  no  prece- 
dent has  been  of  its  having  ever  been  carried  completely 
through"     Chief  Justice  Tilghman,  2  Bin.  194. 

The  novelty  of  the  case  induces  me  to  give  a  report  of  an 
assize  of  nuisance^  which  was  carried  completely  through. 
It  was  that  of  Livezey  and  another,  against  Gorgas,  and 
others.  It  had  been  removed  by  certiorari  from  the  court  of 
common  pleas  to  the  supreme  court ;  and  after  a  motion  to 
quash  the  certiorari  (see  2  Binney,  292)  came  before  me  at  a 
court  of  nisi  prius,  holden  for  the  eastern  term,  May  26tli, 
1811.     Lewis  for  the  plaintiffs.  Rawle  for  the  defendants. 

December,  1807. — No.  33. 
Philadelphia  County^  ss. 

The  commonwealth  of  Pennsylvania.,  to  the  aheriff  of  Philadel- 
phia county.  GREETING. 

Whereas,  John  Livezey,  and  Joseph  Livezey,  have  com- 
plained to  us  that  Benjamin  Gorgas,  Jacob  Gorgas,  John  Weiss, 
George  Hortcr,  and  Catherine  his  wife,  Joseph  Weiss,  William 
8truper,  and  Jacob  Weiss,  unjustly  and  witliout  jucigment,  have 
erected,  levied  and  raised  a  certain  wall  and  dam,  thereby  ob- 
titructing  a  certain  mill  race  and  water  course,  und  have  diverted 
a  certain  other  mill  race  and  watercourse  in  the  township  of  Rox- 
borough,  in  your  county,  to  the  nuisance  of  the  freehold  of  them 
the  said  John  LivCxey  and  Joseph  Livezey,  situate  in  the  same 


Law  Miscellanies.  439 

township  and  county,  witliin  30  years  last  past ;  and  therefore, 
We  command  you,  that  if  the  said  John  and  Joseph  shall  make 
you  secure  of  prosecuting  their  claim,  then  you  shall  cause  12 
free  and  lawful  men  of  the  neighbourhood  to  view  the  said  mill 
race,  water  course,  and  tenements,  and  the  nuisance  thereof 
done,  and  the  names  to  be  impannelled  and  summon  them  by  good 
summoners  that  they  be  and  appear  before  the  judges  of  our  court 
of  common  pleas,  at  Philadelphia,  at  our  county  court,  there  to  be 
held,  the  7th  day  of  December  next,  together  with  the  parties 
ready  to  recognize,  8cc.  and  put  by  sureties  and  safe  pledges, 
the  said  Benjamin  Gorgas,  Jacob  Gorgas,  Sec.  if  they  be  found  in 
your  bailiwick,  so  that  they  be  and  appear  then  and  there  before 
our  judges  aforesaid,  ready  to  hear  and  recognize,  8cc.  and  have 
you  then  and  there  the  names  of  those  pledges  and  this  writ. 

Witness,   Jacob  Rush,  Esq.   President  of  the  said  court,  at 
Philadelpliia,  the  26th  day  of  September,  1807. 

CHS.  BIDDLE. 

John  Doe,       I    pig^j^gg 

Richard  Roe,^  ^ 

John  Denn,         ?    <-. 

Richard  Fenn,  \   Summoners. 

Sheriff's  Return, 
Served  the  within  writ  upon  the  within  named  Benjamin  Gor- 
gas, Jacob  Gorgas,  and  John  Weiss — the  within  named  George 
Horter  and  Catherine  his  wife,  Joseph  Weiss,  W^illiam  Struper, 
and  Jacob  Weiss,  have  nothing  nor  have  any  of  them  any  thing  in 
Tuy  bailiwick,  by  which  they  may  be  attached,  nor  are  they  or  anv 
©f  them  found  within — The  residue  of  this  writ  to  me  directed, - 
appears  in  a  certain  pannel  hereto  annexed.     So  answers 

JOHN  BARKER,  Shtriff. 

The  names  of  the  recognitors  of  an  assize  of  nuisance  between 
John  Livezey  and  Joseph  Livezey,  plaintiffs,  and  Benjamin  Gor 
5^as,  (ut  supra) 

1  Abraham  Duffield, 

2  Daniel  Thomas,  8cc.  in  all  24, 
(which    n\imber  sheriff  must  summon  in  an  assize.    Co.   Litt ; 
155,  a"  albeit  the  words  of  the  writ  be  duodecim,  yet  liy  an  ancient 
course  the  sheriff  must  return  24,  and  this  for  tlic  c-.^;pcdilion  of 
justice.") 


440  Law  Miscellanies. 

Sheriff's  notice  to  John  Weiss,  who  was  the  actual  tenant  to 
the  precipe. 

You  are  hereby  informed  tliat  the  recognitors  of  the  within 
named  assize  will  be  and  appear  at  the  mill  race,  water  course  and 
tenements  within  mentioned,  and  the  nuisance  thereof,  on  the  19th 
day  of  the  present  month  of  October,  at  10  o'clock,  A.  M.  then  and 
there  to  view  the  said  mill  race  water  course  and  the  nuisance  there- 
of done  and  you  are  summoned  to  be  and  appear  before  the  judges 
within  mentioned  then  and  there  ready  to  hear  the  recognition  with- 
in mentioned. 

JOHN  BARKER,  Sheriff. 


Docket  Entries  in  the  Comi  Pleas,  of  Dec.  Term^  1807. — No.  33. 


John  Livezey  &  Jos.  Livezey,"^  Assize  of  Nuisance,  Dec.  7. 1807 

A'S.  _-.... 

Benjamin  Gorgas,  Jacob  Gor- 
gas,  John  Weiss,  George  Hor- 
ter  and  Catherine  his  wife,  Jo- 
seph Weiss,  William  Struper 
and  Jacob  Weiss. 
Eject.  Sept.  30,  1807. 


Proclamation  made  and  rccogni- 
nitors  of  the  assize  called,  15  of 
whom  appeared,  the  parties  to 
^the  suit  were  then  called — the 
plffs.  appeared  by  Mr.  Lewis  their 
atty.  and  the  said  Benj.  Gorgas, 
I  Jacob  Gorgas,  appeared  by  Mr. 
J  Rawle  their  atty.  and  protested 
against  such  their  appearance  being  construed  into  an  admission 
of  the  regularity  of  the  plaintiff  proceeding  in  any  respect  what- 
ever, the  said  John  Weiss  saith  he  is  seized  of  the  premises 
in  the  count  of  the  plaintiff  mentioned,  wherein  the  said  dam,  See. 
are  alleged  to  have  been  erected,  and  prays  leave  to  present  to  the 
court  an  affidavit  by  him  made,  which  is  granted,  and  the  said  af- 
fidavit is  read  and  filed.  Whereupon  the  said  John  Weiss  prays 
that  the  view  in  the  said  assize  may  be  set  aside,  he  the  said  John 
Weiss  not  having  had  a  reasonable  notice  thereof,  as  he  alleges. 
The  court  thereupon  having  heard  the  plaintiffs,  by  their  counsel, 
and  the  said  John  Weiss,  by  his  counsel,  refuse  the  said  prayer  of 
the  said  John. 

The  action  was  then  removed  by  certiorari  to  the  supreme 
court. 

Whereupon  a  summons  to  the  recognitors  issued  from  the  said 
supreme  court,  as  follows  : 

The  Commoriioealth  vf  Pennsylvania,  to  the  Sheriff  of  Phila- 

dcl/ihia  Comity,  GREETING. 

WK  command  you  that  you  cause  to  come  before  our  jiistirc^ 


Law  Miscellanies.  441 

©f  our  supreme  court,  or  one  of  them,  at  a  court  of  nisi  prius  to 
be  holden  at  Philadelphia,  for  the  county  of  Philadelphia,  on  the 
19th  day  of  the  present  month  of  April,  at  10  o'clock  of  the 
forenoon  of  the  same  day,  the  recognitors  of  assize,  namely, 
Abi-aham  Dufiield,  Daniel  Thomas  (inserting  all  their  names) 
who  were  summoned  and  returned  by  the  late  sheriff  of  the 
same  county  as  recognitors  of  assize  in  certain  plaint  of  assize 
of  ^nuisance  prosecuted  in  our  court  of  common  pleas,  for  the 
same  county  by  John  Livezey  and  Jacob  Livezey,  against  Ben- 
jamin Gorgas,  (insert  all  the  defendants)  which  said  plaint  of 
assize  has  been  removed  by  our  writ  of  certiorari  from  our  said 
county  court  into  our  supreme  court,  when  the  same  is  still  pend- 
ing before  our  justices  of  the  same  court,  so  that  the  recognitors  of 
assize  may  recognize.  Sec.  and  pass  on  the  said  plaint  of  assize  be- 
tween the  parties  aforesaid,  and  have  you  then  and  there  this  writ 
together  with  tlie  names  of  the  said  recognitors  as  you  shall  an- 
swer. 

Tested,  Sec.  as  usual  in  other  cases, 
Retur*n. 
April  2.  1811. 

Summoned  the  within  recognitors,  viz.  Abraham  DufField, 
Daniel  Thomas,  (ut  supra)  and  nil  habct  as  to  Isaac  Keen,  and 
John  Keen,  who  are  dead. 

So  answers, 

John  SiVyder. 

Afterwards  there  issued  a  second  summons  to  defaulting  rc^ 
/cognitors,  (return  ut  supra.) 

4 

Ajiril  26,  1811,  Sufireme  courts  nisi /irius,tora)n'BR ack- 

ENRIDGE,   Justice. 

1.  Recognitors  being  first  called — writ  of  assize  was  read  by 
Mr.  Lewis. 

2.  Sberifi's'  fctum  then  read — till  qf  which  papers  were  then 
filed. 

3.  Writ  of  certiorari  read. 

4.  Return  read. 

5.  Plaint  read,  as  follows. 

John  Livezey  and  Joseph  Livezey  x'."l       In  the  s'lprcmc  court 
Henjamin  Govgas,  and    Jacob   Gorgas,  J  of      Pennsylvania,     foi' 
.fohn  Weiss,  George  Hortcr  and  Cathc-  LPhiladelpIiia  county,  of 
rine    his  wife,  Joseph  Weiss,  William  i  the  term  of  March,  A 
'-•'..rupcr,  and  Jacob  Weiss,   Dcfcnclgpits.}  D.  1808. 

'V'^"-  Z'.'Wtr"  r'viTcih   to  recognize  if  Benjamin  Gorgds,  and 
3   K 


442  Law  Miscellanies. 

Jacob  Gorgas,  John  Weiss, George  Hortcr  and  Catherine  his  wife. 
Joseph  Weiss,  William  Struper,  and  Jacob  Weiss,  unjustly  and 
without  judgment,  have  levied  and  raised  a  certain  wall  and  dam, 
thereby  obstructing  a  certain  mill  race  and  water  course  in  the 
township  of  Roxborough,  in  the  county  of  Philadelphia,  to  the 
nuisance  of  the  freehold  of  John  Livezey  and  Joseph  Livezey, 
situated  in  the  same  township  and  county,  within  thirty  years  now 
last  past ;  and  therefore  the  said  John  Livezey  and  Joseph  Livezey, 
by  William  Lewis,  their  attorney,  complain  that  the  said  John 
Livezey  and  Joseph  Livezey,  on  the  first  day  of  January,  A.  D. 
1793,  were  and  still  are  seized  in  their  demesne,  as  of  fee  of  and  in 
one  water  mill,  ten  acres  of  meadow,  ten  acres  of  pasture,  and  ten 
acres  of  arable  land,  situated  in  the  township  and  county  aforesaid, 
together  with  a  certain  water  course  and  stream  of  water,  running 
along  the  said  mill  race  and  water  course,  and  along  the  said  ten 
acres  of  meadow,  ten  acres  of  pasture,  and  ten  acres  of  arable  land, 
to  and  from  the  water  wheel  of  the  same  mill,  which  said  water 
mill  before  the  levying  and  raising  of  the  said  wall  and  dam,  and 
the  obstructing  of  the  said  mill  race  and  water  course,  could  by 
each  day  and  night  grind  200  bushels  of  bread  corn  ;  and  the  said 
Joiui  Livezey  and  Joseph  Livezey..  being  so  thereof  seized,  the  said 
Bciijamin  Gorgas,  and  Jacob  Gorgas,  John  Weiss,  George  Horter, 
and  Catherine  his  wife,  Joseph  Weiss,  William  Struper,  and 
Jacob  Weiss,  on  the  day  and  year  aforesaid,  at  the  county  and 
township  aforcfaid,  tmjustly  and  without  judgment,  levied  and 
raised  a  certain  wall  and  dam,  thereby  obstructing  the  said  mill 
race  and  water  course,  and  the  said  stream  of  water  running  from 
said  mill,  by  reason  whereof  the  said  mill  cannot  grind  more  that» 
20  bushels  of  bread  corn  by  each  day  and  night,  to  the  nuisance 
of  the  freehold  of  the  said  John  Livezey  and  Joseph  Livezey,  and 
so  they,  the  said  John  Livezey  and  Joseph  Livezey,  say,  they  are 
injured  and  damage  have  sustained  to  the  value  of  five  thousand 
dollars,  lawful  money  of  the  United  States,  and  tlierefore  they 
bring  this  assize. 

Pledges  10  proHCcme  I  ^"JJj^^J^g'l'joE. 

6.  Plaintiffs  called,  viz.  John  Livezey  and  Joseph  Livezy,  cpmc 
forth  and  prosecute  your  writ  of  assize. 

The  plaintiffs  appear  by  Mr.  Lewis  their  attorney. 

7.  Defendants  called,  viz:  Benjamin  Gorgas,  and  Jacob  Gui 
(;is,  John  Weiss,  George  Hoi'tcr,  and  Cathciine  his  v.ifc,  Joseph 


Law  Miscellanies.  443 

Weiss,  William  SUupLV,  and   Jacob  Weiss,  conic  iiito  court  or 
else  this  assize  will  be  taken  against  you  by  default. 

Benjamin  Gorgas,  Jacob  Gorgas,  and  John  Weiss  appear  by 
IMr.  Rawle,  their  attorney. 

8.  The  other  defendants  being  called  three  times,  and  not  ap- 
pearing, Mr.  Lewis  prays  as  follows :  Sir,  I  pray  that  the  assize 
may  be  taken  by  default. 

Per  curiam.     Let  it  be  so. 

9.  Mv.  Lewis  then  arraigns  the  assize  by  again  reading  the 
writ  and  the  plaint,  and  then  thus  addresses  the  court: 

"  You  well  understand  that  John  Livezey  and  Joseph  Livezcy 
have  arraigned  an  assize  of  nuisance  to  their  freehold  in  Roxbo- 
rough,  against  Benjamin  Gorgas,  and  Jacob  Gorgas,  John  Weiss, 
George  Horter,  and  Catherine  liis  wife,  Joseph  Weiss,  \^'^illiam 
Stiuper,  and  Jacob  Weiss,  and  I  pray,  that,  as  to  George  Horter, 
and  Catherine  his  wife,  Joseph  Weiss,  William  Strupei*,  and  Jacob 
Weiss,  it  may  be  taken  by  default." 

10.  Defaulters  again  called  forth  three  times  thus:  Come 
forth  or  this  assize  will  be  taken  by  your  default. 

Mr.  Lewis — Sir,  I  pray  that  this  assize  may  be  taken  by  de- 
fault. 

An  agreement  of  the  following  kind  was  then  filed. 

"  I  agree  not  to  object  to  the  regularity  of  this  case,  proceed- 
ing in  this  court,  in  the  record  returned,  by  reason  of  the  non-ap- 
pearance of  five  of  the  defendants,  who  were  I'eturned  nil  habent, 
i.  e.  the  record  shall  be  considered  in  this  court  as  fully  as  it  was 
in  the  common  pleas,  but  waving  no  other  objection." 

(Signed)  WILLIAM  RAWLE, 

For  B.  and  J.  GoTffas,  and  John  IVeiss^ 

11.  Mr.  Lewis  files  the  plaint  aiid  calls  upon  the  defendants 
to  plead  ;  defendants,  though  entitled  to  an  adjournment  of  some 
hours,  agree  to  plead  instanter  saving  their  rights. 

Pl'-a, 
Livezey,"! 

V         \ 

Gorgas.  J 

And  now,  to  wit,  at  tiiis  same  term  comes  as  well  the  said 
Benjamin  Gorgas  and  the  said  Jacob  Gorgas,  by  their  attorney 
iforcsaiil,  :is  the   suid  Jolm  Wt-iss  by  his  attorney  aforesaid,  and 


444  Law  Miscellanies* 

defends  the  force  and  injury  when,  he.  and  the  said  Benjamin  and 
Jacob,  pray  judgment  of  the  writ  aforesaid,  because  they  say 
that  the  said  wall  and  dam,  which  they  the  said  John  and  Joseph 
Livezey  above  complain  and  unjustly  allege,  Avas  erected,  levied, 
and  raised  by  the  said  Benjamin  and  Jacob  Gorgas,  and  the  said 
John  Weiss,  who  is  above  impleaded  jointly  Avith  the  said  Ben- 
jamin and  Jacob,  to  the  nuisance  of  the  said  John  and  Joseph,  was 
at  the  county  aforesaid,  erected,  levied,  and  raised  by  a  certain 
John  Gorgas,  long  since  deceased,  in  and  upon  the  freehold  of 
him  the  said  John  Gorgas,  as  well  he  might,  and  not  by  them  the 
said  Benjamin  and  Jacob  Gorgas,  and  John  Weiss,  or  any  of  them, 
•which  said  John  Gorgas  afterwards,  to  wit,  on  the  first  day  of 
January,  1781,  at  the  county  aforesaid,  died  seized  in  his  demesne, 
as  of  fee  of  and  in  the  said  tenements  whereof  and  wherein  the 
said  wall  and  dam  was  erected,  having  first  made  his  last  will  and 
testament  according  to  the  form  of  the  act  of  assembly  in  that 
case  made  and  provided,  and  thereby  and  therein  devised  the  said 
tenements,  together  with  all  his  other  lands,  mills,  tenements,  and 
hereditaments  to  his  five  sons  and  four  daughters,  to  wit,  John, 
Benjamin,  Jacob,  &c.  8cc.  Sec.  (reciting  a  chain  of  deeds  and  con- 
veyances and  the  entry  and  seizin  under  each  of  them,)  to  a 
certain  John  Weiss,  and  his  heirs,  Avho  by  virtue  thereof  entered, 
and  was  seized  as  the  law  requires ;  and  so  the  said  John  Weiss 
became  in  his  lifetime  seized  of  the  whqje  of  the  said  tene- 
ments whereon,  8cc.  in  his  demesne  as  of  fee  and  being  so 
thereof  seized,  the  said  John  afterwards,  to  wit,  on  the  ■  -■■  <  day 
of  July,  A.  D.  1803,  at  the  county  aforesaid,  died  so  seized,  after 
whose  death  the  said  tenements  descended  to  Catherine,  the  wife 
of  the  said  George,  to  the  said  John  who  is  now  impleaded,  to 
Joseph  Weiss,  to  Ann  who  is  married  to  a  certain  William 
Struper,  and  to  Jacob  who  is  nov/  an  infant  under  the  age  of  21 
years,  the  heirs  of  him  the  said  John,  by  virtue  whereof  the  said 
Catherine  and  George,  in  right  of  the  said  Catherine,  the  said 
John  and  Joseph,  the  said  Ann  and  William,  in  the  right  of  the 
said  Ann  and  the  said  Jacob,  who  is  now  an  infant,  then  and  theve 
before  the  of  the  said  writ  into  the  tenements  where- 

on, &.C.  entered,  and  whereof  seized,  as  the  law  requires ;  and  this 
they  arc  ready  to  verify.  Wherefore  they  pray  judgment  of  the 
said  writ,  and  of  this  they  put  tliemselves  on  the  assize  ;  and  they 
bring  here  into  court  the  said  several  writs,  deeds,  and  indentures 
above  mentioned.  Sec.  and  if  not  the  said  Benjamin  and  Jacob,  by 
their  attorney  aforesaid,  defend  the  fovqe  and  injury  when,  8cc.  aiid 


Law  Miscellanies.  445 

feJiy  that  tlic  assize  aforesaid  between  them  and  the  said  Jqhn  and 
Joseph  ought  not  to  be  taken,  because  they  say  that  they  did  not 
erect,  levy  and  raise  the  said  wall  and  dam,  thereby  obstructing  the 
said  mill  race  and  water  course,  and  the  stream  o f  Mater  running 
from  the  said  mill,  nor  obstruct  and  direct  the  said  mill  race,  water 
course,  and  stream  of  water,  to  the  nuisance  of  the  freehold  of  tlie 
said  John  and  Joseph  Livezey,  in  manner  and  form  as  the  said 
John  ,and  Joseph  have  complained  against  them  ;  and  of  this  they 
put  themselves  on  the  assize. 

And  if  not  the  said  John  by  his  attoiniey  aforesaid,  defends  tlie 
force  and  injury  when,  &c.  and  Says  that  the  assize  between  him  and 
the  said  John  and  Joseph  ought  not  to  be  taken,  because  he  says 
tliathe  did  not  erect  levy  and  raise  the  said  wall  and  dam,  thereby 
obstructing  the  said  mill  race  and  water  course,  and  the  streatll 
of  water  running  fi'om  the  said  mill,  nor  obstruct  nor  direct  tlw 
said  mill  race  and  water  course  and  stream  of  water  to  the  n\ii- 
sance  of  the  freehold  of  the  said  John  and  Joseph  Livezey,  in  man- 
ner and  form  as  the  said  John  and  Joseph  Livezey,  have  complain- 
ed against  him,  and  of  this  he  puts  himself  on  the  assize. 
Replication  to  be  reduced  to  form  hereafter. 

13.  The  plaintiffs  reply  that  the  defendants,  Benjamin  Gor- 
gas,  Jacob  Gorgas,  John  Weiss,  and  the  other  defendants,  did  levy 
and  raise  the  said  wall  and  dam,  to  the  nuisance  of  the  freehold  of 
the  said  John  Livezey  and  Joseph  Livezey,  in  manner,  Sec.  ai:>d  of 
this  in  like  manner  put  themselves  on  the  assize. 

And  so  issue  was  formed. 

14.  The  assize  was  then  called  and  each  separately  asked  bv 
thc  clerk  if  they  had  viewed  the  place — six  or  more  having  answer- 
ed affirmatively,  the  clerk  then  administered  to  12  of  them  the 
following  oath  or  affirmation. 

You  shall  v/ell  and  truly  try  this  mattei'  of  assize  between  the 
parties  according  to  your  evidence. 

When  the  assize  has  sworn  or  affirmed. — They  v/ere  thus 
charged  by  the  clcik- 

Oentlemen  recog^nitors  of  assize^ 

You  are  to  enquire  whether  the  defendants,  unjustly  andwitli- 
out  judgment,  (as  in  the  words  of  the  plaintiff,)  within  30  years  last 
past,  and  if  they  did  then  you  are  to  enquire  what  costs  and  dama- 
ges the  plaintiffs  have  sustained  by  reason  of  such  levying,  Sec. 
(lit  supra)  an4  if  they  di(>not  levy  raise,  Jcc.  (ut  supra)  tljen  you  arti 


446  Law  Miscellanies. 

to  say  so  and  no  more  and  so  stand  together    and  hear  your  ei  .- 
dencc 

The  plaintiffs  counsel  then  reads  the  plaint  and  opens  the  casQ 
i^oin!:^  on  first  to  prove  the  freehold  to  be  in  the  plaintiffs,  and  2ly, 
thenatiiroof  the  nuisance  done  thereto — insisting  that  the  defend- 
ants dam,  &c.  was  not  only  an  injury  to  the  plaintiffs  mill,  but  also 
injured  his  freehold  and  prevented  him  from  building  another  mill. 

Sheriffs'  notice  to  the  recognitors. 

April  1.  1811. 
Sir, 

You  are  hereby  summoned  to  be  and  appear  before  the  judges 
of  the  supreme  court  of  Pennsylvania,  or  one  of  them  at  a  court  of 
nisi  prius,  to  be  held  at  Philadelphia,  on  the  19th  day  of  the  pre- 
sent month  of  April,  at  ten  o'clock  in  the  forenoon,  as  a  recognitor 
of  assize  in  an  assize  of  nuisance  wherein  John  Livezey  and  another 
ure  plaintiffs,  and  Benjamin  Gorgas  and  others  are  defendants. 

For  Francis  Johnston,  Sheriff, 
Thomas  Elliot,  deputy. 

Mr.  Benjamin  Cottman. 

Lewis  for  plaintiff:  contended  that  in  cases  of  nuisance  every 
man  has  3  remedies:  1st,  to  prostrate  it  himself;  2d,  to  bring  an 
action  on  the  case  and  recover  damages,  and  3dly,  to  brhig  an  as- 
size of  nuisance  in  order  to  remove  the  offendin'g  cause  and  to  re- 
cover damages  for  the  injury  sustained  in  case  of  an  obstinate  per- 
son. The  last  was  the  only  sure  and  adequate  remedy.  3  Blac. 
Comment.  220.  That  the  law  was  clear  and  undisputable  that 
no  man  had  a  right  to  use  his  own  property  so  as  to  injure  his 
neighbours ;  that  a  man  had  no  right  to  come  to  his  neighbour's  line 
and  throw  a  cup  of  water  or  even  spit  upon  his  land  ;  that  if  de- 
dendant's  dam,  had  raised  the  water  an  inch  upon  the  plain- 
tiff's freehold,  it  was  a  nuisance  for  which  an  assize  will  lie  ;  it  is 
comparatively  fcstinum  remedium,  wherein  the  tenant  must  plead 
presently  and  no  imparlance  without  good  cause  and  if  there  be  se- 
veral defendants  and  any  one  of  them  do  not  appear  upon  the 
first  day,  the  assize  shall  be  taken  by  defendant  against  them.  1 
Salk.  82-3.  Enough  in  this  action  to  declare  for  a  nuisance  to 
i-he  plaintiffs'  freehold  generally,  9  Co.  53  b.  5  Co.  100  b.  Con- 
.sequeiitial  damage  or  preventing  the  plaintiff  from  exercising  a 
right,  war,  a  nuisance  as  by  overhanging  his  house,  and  preven- 
ting him  from  raising  his  higher,  9  Co.  54  b.  Battons  case  and 
therefore  preventing  tiic  pUuiilifffrombuiidnga  new  mill  which  he 


Law  Miscellanies."    "*"  447 

had  a  right  to  do  was  a  nuisance  to  his  freehold  ;  plaintiff  had  a 
right  to  say  defendant  should  not  raise  the  water  upon  him  one  inch 
• — although  such  raising  produced  no  immediate  and  direct  damage, 
and  that  when  a  plain  right  was  clearly  invaded,  the  actual  amount 
of  damage  sustained  was  not  the  important  point  to  be  considered, 
2.  Ld.  Rayd.  958,  6  Mod.  An  assize  will  well  lie  for  the  alienee 
against  the  alienee  ;  for  if  a  man  by  a  wrongful  act  become  liable 
to  my  action,  he  cannot  by  alienation  of  the  premises  whereon 
the  cause  of  action  still  subsists,  whicli  alienation  too  is  his  own 
act,  deprive  me  of  my  remedy  ;  that  the  statute  1 3  Edw.  I.  c.  24. 
giving  a  writ  in  similar  cases,  expressly  gives  the  action  against 
the  alienee  ;  that  the  only  difference  was  this,  by  virtue  of  that  sta- 
tute, the  writ  must  be  both  against  the  wrong  doer  and  the  alienee. 
That  every  contuiuance  was  a  fresh  nuisance,  and  therefore  the 
alienee  who  continues  it,  is  equally  liable  with  the  alienee  who 
first  levied  it ;  that  a  quod  permittat  must  be  against  the  alienee 
alone,  because  it  must  always  be  against  the  tenant  of  the  free- 
hold ;  but  an  assize  must  be  brought  against  both.  A  quod  pennit- 
tat  lies  as  well  for  the  alienee  as  against  the  alienee,  5  Co.  100  b. 
That  a  descent  is  an  alienation,  and  the  nuisance  may  be  laid  to 
the  damage  of  the  freehold  of  tt>e  plaintiffs'  ancestor,  ibid.  It 
follows  then,  that  if  the  whole  mischief  had  been  done  by  the  father 
of  the  Gorgas's,  that  the  action  will  lie  against  them,  together  witli 
the  other  defendant,  John  Weiss,  the  tenant  of  the  freehold.  De- 
fendants say  an  assize  lies  only  against  tenant  of  the  freehold,  or 
his  servant ;  it  is  admitted  that  the  tenant  of  the  freehold  must  be 
joined,  which  has  been  done  ;  but  if  any  thing  be  done  on  the  soil 
of  a  tenant  of  the  freehold  by  a  stranger,  it  will  well  lie  against  the 
tenant  and  the  stranger,  F.  N.  B.  239,  290.  3  Vin.  ab.  220.  pi.  16. 
Lilly's  Reports,  53.  As  to  notice,  an  assize  will  lie  without  no- 
tice against  him  who  did  the  wrong  ;  but  it  is  admitted  that  notice 
of  some  kind  ought  to  be  given  to  the  alienee.  The  statute  docs 
not  re(]uire  notice  ;  but  tlie  courts  by  an  equitable  construction 
\ipon  it,  to  prevent  a  man  from  being  sued  without  knov/ing  of 
demand,  or  having  been  called  upon  to  do  what  is  right,  liut  de- 
fendants have  been  called  on ;  they  have  had  notice  and  paid 
money  on  account  of  this  very  nuisance,  brought  to  June,  1804; 
and  this  was  superior  to  any  notice  t!iat  could  have  been  given 
them.  There  are  cases  in  Avliicii  an  action  is  tlie  only  proper  de- 
mand, I  Mod.  175.  As  to  notice  of  bonds  to  executors,  2  Vtrn, 
3r.  88.  11  Viner,  350.  pi.  13.  2  Bac.  434,  old  edition.  Btii 
there  isiM)  case  whtvc  a'-tion   is  not  a  propfi-  notice  and  demanf! 


448  J^Aw  Miscellanies. 

If,  upon  this  notice,  defendants  had  removed  the  nuisance.  It  wouiu 
have  been  a  good  plea  to  this  assize.  But  John  Weiss  is  liimsclf 
guihy  of  levying  and  raising  the  nuisance;  he  increased  the  height  of 
the  dam,  and  repaired  it,  and  this  is  levying,  raising,  and  keeping  up 
the  nuisance  ;  for  if  it  leaked,  and  th6  leak  was  stopt  by  himj  he 
thus  caused  the  water  to  raise  upon  the  plaintiffs'  freehold.  If  it 
be  objected  the  word  levying  is  not  applicable  to  encreasing,  it  is 
answered  by  saying,  that  in  an  assize  the  plaintiff  may  abridge 
his  demand.  It  is  said  the  defendants'  dam  is  no  higher  than  is 
absolutely  necessary  for  his  own  purposes  ;  but  this  is  clearly  no 
answer  to  our  complaint.  For  if  a  man  wishes  to  build  a  mill,  and 
cannot  do  it  without  raising  the  water  upon  my  freehold,  he  has 
no  right  to  do  it  without  my  consent ;  and  this  privilege  is  as  fair 
a  subject  of  purchase,  bargain,  and  salQ  as  any  other  that  can  be 
imagined.  The  nuisance  must  be  so  abated  as  to  completely  re- 
dress the  injury  but  must  be  done  in  a  convenient  manner,  and 
the  materials  of  which  the  thing  abated  is  composed,  belong  to 
the  defendant.     Sir  William  Jones'  Reports,  222-3. 

Mr.  RaAvle  for  defendant,  argued  that  Mr.  Weiss  was.  sole  seiz- 
ed, and  that  the  other  defendants  had  no  interest  in  the  premises 
whereon,  &c.  since  1796.  That  the  action  was  not  maintainable 
by  the  alienee  against  the  alienee,  2  Lutw.  1588,  is  so  expressly, 
2  Ins.  406.  404.  405.  12  Mod.  639,  that  a  devise  was  an  alienation, 
2  Black.  Com.  289,  or  transfer,  1  Dall.  170,  that  he  who  pursues 
a  special  remedy  must  pursue  it  strictly.  If  the  father  disseized, 
A.  and  died  seized  the  disseizee  is  put  to  his  writ  of  right,  and  can- 
not have  an  assize,  2  Roll.  ab.  142.  Assize  lies  against  heir  only, 
when  he  refuses  to  reform  the  nuisance,  ibid^l  Vent.  48.  1  Mod. 
27.  16  Vin.  ab.  33.  Jenk.  Cent.  250 — The  plaintiff  must  precede 
his  action  by  giving  notice  of  what  it  is  he  requires  to  be  done,  and 
whereon  the  same  previously  requires  a  request^  it  must  be  prov- 
ed, and  no  action  lies  till  request.  1  Saund.  33.  If  he  who  origi- 
nally erected  the  alleged  nuisance  had  been  living,  he  might  have 
been  joined  with  the  alienee,  but  as  he  is  dead,  and  his  heirs  or 
the  alienee  have  done  nothing  to  increase  the  nuisance,  but  used  it 
as  formerly,  and  as  the  alienee  had  notice  to  discontinue  it.  The 
assize  as  brought  cannot  be  supported.  That  keeping  a  thing  hi 
repair,  in  the  same  state  in  which  the  tenant,  found  it  when  he 
came  into  possession,  can  by  no  means  be  considered  erecting  it- 
No  evidence  to  shew  the  plauitiff  had  suffered  any  damage.  If  there. 
is  water  in  the  plaintiffs  tail  race,  it  is  owing  to  a  natural  obstructioK 
in  tlie  stream,  which  it:  isintJic  power  of  the  plaintiff  to  recover 


Law  Miscellanies.  449 

That  the  assize  would  only  enquire  whether  there  was  an 
actual  damage  at  the  time  of  bringing  the  assize,  and  that 
they  had  no  right  to  take  into  consideration  any  pretended 
intention  the  plaintiffs  might  allege  they  had  of  erecting  a 
new  mill. 


John  and  Joseph  Livezey  vs.  Benjamin  and  Jacob  Gor- 
gas,  John  Weiss,  and  others. 

Assize  of  nuisance ;  erecting  a  dam,  obstructing  a  mill 
race  and  water  course. 

10th  Oct.  1 747,  freehold  in  Thomas  Livezey  as  to  part. 
9th  Aug.  1 760,  freehold  in  Thomas  Livezey  as  to  the  other 
part.   This  by  title  deduced  from  the  proprietary. 

15th  June,  1790,  devise  of  Thomas  Livezey,  Joseph  and 
John  Livezey. 

30th  Nov.  1807,  notice  to  defendant  to  produce  papers. 

These  produced,  purporting  to  be  receipts  to  defendant 
for  money  paid  for  the  privelege  of  keeping  up  dam  accord- 
ing to  agreement. 

The  first,  19th  April,  1775,Livezey  to  Gorgas,^15,pri- 
vilege  one  year  for  swelling  the  water  on  a  part  of  my  land. 

April  1776,  receipt,  ^15  for  like  privilege. 

olst  March  1777,  £l5. 

5th  May  1781,  ^15. 

29th  May  1782,  J.  and  B.  Gorgas  executors,  £55  sum 
then  due. 

This  just  before  repeal  of  tender  laws  (depreciation  mo 
ney.) 

29th  May  1791,  £\0, 

June  1782,  receipt. 

April  1785,  receipt  for^TlO  in  full  for  liberty  of  keeping 
up,  8ic. 

Jan.  9th,  1793,  record  of  action  brought  in  common  plert* 
for  the  nuisance. 

8th  March,  1802,  480  dollars  damages. 

17th  March,  1802,  108  dollars  remitted. 

Before  this  there  had  been  a  referenrt- 
3  L 


4S0  Law  Miscellanies. 

John  Huston  (sworn.) 

31st  March,  1783,  agreement  shewn  to  the  with€ss  pur- 
porting to  be  between  Thomas  Livezey  and  J.  and  B.  Gor- 
gas. 

The  witness.  (Benjamin  Gorgas  brought  this  draught 
with  him.  I  was  desired  to  witness  by  B.  Gorgas.  Not 
then  executed,  the  deed  not  being  according  to  the  under- 
standing of  B.  Gorgas.  It  was  lowering  their  water  more 
than  agreed  upon.) 

It  is  now  offered  to  be  read.  It  is  a  draught  of  a  writing 
to  be  executed  with  alterations  in  favour  of  Gorgas,  in  the 
hand  writing  of  J.  Sergeant,  who  was  of  counsel  for  Gorgas. 

It  is  admitted  and  read  as  evidence  of  the  sense  of  the 
parties  at  the  time. 

John  Gorgas  (sworn.) 

As  to  Weiss  repairing  the  dam,  &c. 

Earnest  Felty  (sworn)  as  to  the  nuisance. 

Reading  Howell  (sworn)  as  to  the  nuisance. 

Titus  Yearkus  (sworn)  these  as  to  the  nuisance. 

Suit  of  1791,  for  this  nuisance. 

Nov.  1794,  read  suit  vs.  Gorgas. 

Barker  late  Sheriff  (sworn)  as  to  holding  the  inquest  un- 
der an  order  from  the  orphans'  court  for  a  valuation  in  par- 
tition of  this  mill  and  tract  of  land  adjoining. 

It  is  proposed  to  ask  the  sheriff  whether  an  allowance 
was  not  made  in  the  partition  in  consequence  of  the  reduced 
Aulue  of  the  mill  by  this  nuisance. 

Question;  whether  he  was  not  present  with  the  jury  in 
fixing  this  value ;  and  whether  a  reduction  of  some  hundred 
povmds  was  not  made  ? 

Exception  to  the  question,  as  not  the  best  evidence.  P. 
Curiam.  If  any  note  by  the  Jury  appeared  on  the  proceed- 
ings as  the  ground  of  valuation,  this  would  be  the  best  evi- 
dence. The  next  best  evidence  are  the  jury  themselves ;  or 
some  of  them.     This  is  secondary  and  cannot  be  admitted. 

Joseph  Storm  (sworn.) 

Nothing  taken  into  view  as  to  this.  I  was  one  of  tht^ 
jury. 


Law  Miscellanies.  451 

Rawle  pro  def. 

Gorgas  (sworn)  as  to  these  being  the  ojily  papers  he  has :  ar- 
ticle, Sec. 

George  Ayrcs  (sworn)  was  a  referee  in  case  of  Gorgas  and 
Livezey.     Cannot  say  as  to  other  papers  laid  before  us. 

Thomas  Holmes  (sworn)  was  one  of  the  referees  ;  papers  laid 
before  us  :  both  parties  said  these  were  all  t'ae  papers. 

Alexander  Martin  one  of  the  referees.  All  papers  laid  be- 
fore the  referees.     No  complaint  of  any  kept  back. 

10th  Feb.  1782,  deed;  Benjamin  Gorgas  to  Jacob. 

1st  April,  1796,  Jacob  to  Weiss  and  Thatcher,  subject  to  all 
diarges  on  the  land. 

6th  October,  1800,  Thatcher  to  Weiss,  now  seized  of  the  whole. 

July,  1803,  Weiss  (old)  died  leaving  5  children. 

Ijth  March,  1804,  Petition  to  orphans'  court,  order  and  pro- 
ceedings. 

16th  Aug.  1806,  prior  to  proceedings  on  the  assize,  freehold 
in  Weiss  alone. 

28th  May,  1780,  original  will  of  J.  Gorgas  (read.) 

Devise  is  an  alienation.  It  will  be  contended  no  writ  of  assize 
in  such  case,  there  being  here  alienee  of  devisee  ;  that  is  alienee 
of  alienee. 

The  statute  which  gave  the  writ  casu  consimili  extends  only 
to  the  alienee. 

So  a  writ  of  assize  does  not  lie  versus  alienee  of  alienee. 

2d.  Will  insist  that  as  against  heir  or  alienee  this  writ  will  not 
lie,  unless  on  request  made  to  heir  or  alienee.  Law  respects  de- 
scent cast. 

It  is  not  pretended  that  request  has  been  made  to  J.  Weiss,  the 
son  (present  deft.) 

3d.  Defendant  must  be  seized  of  the  freehold,  or  be  servants 
of  those  who  are. 

Note  :  This  ojjserved  with  regard  to  the  others  mentioned  in 
the  writ. 

1774,  J.  Gorgas  lived  on  the  land  ;  Livezey,  a  representative 
in  the  legislature.  Reference  and  the  award.  Note;  thisto  ground 
a  presumption  that  Gorgas  was  overreached  by  Livezey  in  the  ar- 
bitration ;  article  of  agreement,  Ecc.  the  one  weak,  the  other  Avise. 

Livezey  v.  Gorgas  ;  action  brought. 

Sept.  1794,  Rule  of  reference;  report  made;  exceptions  for 
plaintiff  overruled  by  court,  arnl  report  confirmed.     Writ  of  erro;; 


452  Law  Miscellanies. 

and  appeal.    Judgment  reversed  (supreme  court.)     Record  re- 
mitted.    Venire,  issue,  8cc. 

Declaration  and  plea  in  this  suit,  verdict  of  jury  (read.) 

Exception  to  the  report  being  read,  as  it  had  been  set  aside. 

The  reading  overruled.     It  is  a  nullity. 

Andrew  Hay.,  (sworn)  to  shew  not  a  nuisance. 

John  Boyer,  (sworn)  to  the  same  effect. 

Richard  Griffith,  (sworn)  to  the  same  effect. 

Samuel  Gorgas,  (sworn)  to  the  same  effect. 

Benjamin  Gorgas,  (sworn)  as  to  papers  in  his  possession ;  has 
no  others  to  produce. 

Authorities  will  be  relied  on. 

Salk.  82,  of  the  nature  of  assize. 

3  Black.  220.  ^ 

Take  notice,  &c. 

10th  October,  1797,  Livezey  purchased. 

9th  August,  1760,  purchased  other  land.  So,  firofirietor  of 
land  on  both  sides  stream :  had  in  view  to  build  another  mill. 
BarendoUar,  from  whom  he  purchased  on  one  side  of  the  stream, 
never  disputed. 

^    Andrew  Heath,  (sworn)  must  have  been  young,  so  might  not 
have  heard  of  complaint. 

Authorities  continued. 

2d  Ray.  958,  Right  of  vote  in  an  elector. 

6  Mod.  The  minimum  of  right  in  an  election. 

9  Coke,  54,  b.  An  impediment  to  build  is  a  nuisance ;  and  re- 
medied by  him  impeded,  before  he  builds. 

13th  Ed.  I.  c.  24.  As  to  remedy  to  be  extended  to  alienee  of 
alienee. 

Heir  and  devisee  are  alienees. 
In    -dSth  Mod.  639,  assize  must  be  versus  alienee. 
'  3  WoUaston,  189. 

5  Coke,  100,  b. 

9  Coke,  53.  Erected  to  the  nuisance  of  the  ancestor;  descen-t 
cast,  8cc. 

Fitzherbet,  Nat.  brev.  289.  Acts  done  by  a  stranger  not  ten- 
ant of  the  freehold.  It  lies  against  him  who  dicj  the  tort,  and  against 
the  terre-teimnt. 

3d  Viner,  220,  pi.  1 6. 

Lilly's  R.  53.  Tenant  of  freehold  must  always  be  made  defen- 
dant as  well  as  those  who  did  the  wrong. 


Law  Miscellanies.  4ofj 

Per  Curiam. 

But  in  this  case  has  not  rent  been  paid  by  the  son  of  Livezey  to 
Gorgas  ;  a  draught  of  the  article  in  their  hand  writing  ? 

Rawle  ;  I  speak  of  request. 

Lewis ;  I  turn  to  the  statute  to  show  that  it  does  not  require 
it  ;  and  it  is  only  a  conclusion  by  the  court,  as  to  what  is  reason- 
able. The  bringing  the  action,  a  request.  Action  by  plaintiff'  v. 
the  two  Gorgas's;  reference,  &c.  June,  1804,  an  assize  v.  B.  and 
J.  Gorgas,  and  J.  Weiss.  Was  not  this  notice  ?  This  three  years 
before  the  present  action. 

1  Mod.  175.  There  are  cases  where  as  to  notice  it  must  be  by 
action.     But  m  all  cases  notice. 

2  Viner,  27,  88,  same.  2d  Viner,  350,  P.  L.  13.  Debt  versus 
executors,  &c.    2  Bac.  434. 

This  is  notice  to  all  three  defendants.  But  Weiss  has  himself 
raised  the  dam  and  continued  the  nuisance. 

Receipts  by  Gorgas  shews,  that  while  they  continued  to  pay,  it 
did  not  raise  higher  than  height  agreed  upon.  Maintaining  and 
keeping  up  dam,  is  not  that  a  trespass  ? 

Rawle,  in  continuance. 

j.Vlill  has  not  been  impeded  for  an  hour,  or  a  jninute. 

But  the  present  incumbi'ance  is  by  an  heir  of  the  devisee  ; 
notice  is  necessary  ;  for 

May  27th,  1780,  devised  by  Gorgas  to  J.  and  B.  Gorgas. 

31st  August,  1782,  B.  to  J. 

2d  September,  1782.  J.  became  seized  of  the  whole. 

1st  April,  1796,  deed  to  Weiss  and  Thatcher. 

6th  October,  1 800,  conveyance  to  Weiss,  father  of  defendant, 
by  Thatcher.  ^ 

July,  1803,  deed  to  G.  Weiss. 

Since  April,  1796,  J.  and  B.  Gorgas  had  no  concern.  Weiss 
the  now  tenant  of  the  freehold. 

J.  and  B.  Gorgas  did  not  build  a  dam  in  the  first  instance,  nor 
had  any  concern  with  a  tenant. 

Statute  does  not  apply  to  alienee  of  alienee. 

2  Lutwitch,  1538.  Note,  Stat.  Will.  2.  c.  24.  which  gives,  does 
not  extend  to  alienee. 

2  Inst.  406,  reading  of  Coke  upon  statute. 

12  Mod.  639,  if  alienee  dies,  the  party  must  have  a  Avrit  of  cn- 
i-y  in  the  per,  and  not  an  assize. 

2  Black.  Com.  287. 

1  Dal).  170.     Transfer,  a  devise. 


454  Law  MiscELtANiES. 

Now  as  to  request. 

2  Levintz,  153,  case  of  notice  which  docs  not  come  up  to  re 
Tjuest. 

2  Rolle,  142,  pi,  1.  if  a  man  erect,  Sec. 

1  Vent.  48.     1  Mod.  27.      16  Vin.  33.  ' 

Jenkin's  Centuries,  260. 

P.  C.  This  seems  most  to  the  point ;  but  notice  by  action  see. 

1  Saunders,  33,  demand  necessary,  if  he  originally  erecting  is 
still  alive,  he  may  be  joined  ;  but  where  dead,  8cc. 

Dall.  pro  quer. 

2  Questions. 

1 .  What  arc  the  rights  of  the  plaint  ? 
,     2.  \Vh at  the  remedy  ? 

The  bringing  the  action  proves  the  law. 

The  elastic  nature  of  the  common  law. 

In  an  action  on  the  case,  can  bring  into  view  only  damages  lie- 
fore  the  suit  brought. 

Traces  the  chain  of  title  ;  evidence  of  the  nuisance.  Compares 
the  testimony,  Sec.  Sec. 

Per  Curiam^  to  the  Jury. 

The  proprietor  of  the  soil  through  which  a  stream  runs, 
cannot  divert  it  from  its  natural  bed,  save  within  his  own 
bounds ;  and  if  even  within  his  own  bounds,  he  divert3  it, 
he  must  be  answerable  that  it  is  brought  back  to  its  bed  be- 
fore it  passes  the  boundary  below ;  nor  could  he  divert  it 
within  his  own  bounds  so  as  to  waste  it,  and  lessen  the  quan- 
tity that  would  have  come  to  him  below.  He  must  use  his 
stream  so  as  not  to  diminish  it  to  him  to  whom  it  is  next 
to  come.  He  cannot  change  its  natural  channel.  The  pro- 
prietor below  has  a  right  to  the  stream  as  it  came  to  him  by 
the  usual  supply  of  nature,  so  far  as  that  no  act  of  him  above 
shall  otherwise,  than  by  a  reasonable  use,  diminish  it.  The 
proprietor  above  cannot  sa)',  the  stream  is  lessened,  it  is 
true,  by  the  course  I  have  given  it,  but  it  does  you  no  da- 
mage; you  have  enough  still.  That  answer  will  not  suffice; 
it  goes  only  to  the  quantum  of  the  injury^  and  the  aggrava- 
tion of  it.  It  is  sufficient  if  the  quantity  of  water  is  reduc- 
ed unreasonably,  that  would  otherwise  have  descended  to 
him  that,  ie  below.     What  is  against  his  consent  is  a  wrong. 


Law  Miscellanies*  456 

He  must  be  the  judge  of  what  he  wants ;  and  whether  the 
lessening  is  a  help  or  a  hurt.  This  is  not  ideal.  The  owner 
of  the  soil  above  may  have  it  in  his  power  maliciously  to 
waste  the  water,  by  turning  it  where  it  would  sink  in  part 
and  disappear;  or  he  might,  to  serve  another,  turn  the 
stream  through  his  ground,  and  give  it  a  new  channel.  I 
take  it  that  an  action  on  the  case  would  lie  for  such  a  depri- 
vation. 

Be  that  as  it  may,  the  law  is  clear  that  the  owner  of  the 
soil  above  has  a  right  to  the  stream  in  its  natural  state ;  un- 
increased  in  depth  by  him  below.  That  is,  he  has  a  right 
to  the  fall  and  current  of  the  stream  through  his  land,  with 
the  same  descent  at  the  boundary  below  that  it  had  in  its 
natural  state.  The  proprietor  below  cannot  increase  the 
depth  of  the  stream  above  by  any  impediment,  so  as  to  be 
justifiable. 

But  he  cannot  increase  the  depth  above,  otherwise  than 
by  flooding  some  of  the  soil,  making  that  a  part  of  the  channel 
which  was  not  before. 

In  the  application  of  this  principle  it  is  true,  as  in  the 
application  of  the  principles  of  law  in  all  cases,  the  maxim 
of,  de  minimis,  occurs  ;  the  law  will  not  regard  small  things. 
But  what  is  the  meaning  of  this  maxim  ?  It  is  that  the  law 
<vill  not  force  us  to  put  on  glasses  to  see  the  minimum. 
But  if  seen  it  must  be  noticed.  I  will  not  say  that  the  throv.'- 
ing  back  the  water  a  single  line  would  force  itself  upon  you, 
and  compel  redress.  For  it  must  be  an  excess  that  is  visi- 
ble to  the  naked  eye  ;  that  is  discernable  to  every  vision 
that  will  call  for  the  interposition  of  the  law.  This  reduces 
it  to  the  practicable  in  the  afRiirs  of  men. 

But  admitting  that  there  is  even  a  line  of  flooding  on  the 
land  of  another,  or  9^vell  of  the  water,  by  reason  of  an  impe- 
diment of  the  current,  and  that  it  is  ascertained  to  be  so,  how 
can  I  say  that  it  is  not  a  trespass,  and  the  subject  of  legal 
notice.  Say  an  increase  that  but  begins  to  be  such,  yet  if  it 
is  such,  how  can  I  get  over  it  ?  Give  an  inch,  take  an  ell. 
Where  shall  we  stop  ?  Apply  these  principles  to  the  case  be- 
fore us,  and  it  will  be  seen  whether  a  trespass  exists.  Ac- 
cording to  the  testimony  of  some  qf  the  v.'itnesses,  it  would 


456  Law  Miscellanies. 

seem  to  be  a  trespass  not  of  lines  ;  nor  of  inches  j  but  of 
feet.  The  back  water  not  only  goes  to  the  mill,  the  dis- 
tance of  many  perches,  but  rises  on  the  wheel  three  and  one 
half  inches;  so  that  the  wheel  wades,  as  the  phrase  is,  and 
IS  impeded  in  a  revolution.  If  one  inch  at  the  mill,  what 
must  be  the  overflow  at  the  division  line  ?  The  how  much 
goes  to  the  quantum  of  damages,  the  overflowing  at  all  goes 
to  the  trespass. 

It  has  been  alleged  that  the  swell  at  the  mill,  is  in  part 
owing  to  rocks  below  within  the  plaintiff"'s  own  ground. 
That  may  be  in  part,  but  it  is  not  wholly  so. 

As  to  the  agreement  that  has  been  given  in  evidence,  it 
goes  to  shew  the  understanding  of  the  parties  at  the  time, 
both  as  to  what  might  be  an  overflowing,  and  a  compensa- 
tion for  it.  This  will  be  considered.  The  question  never- 
theless is  still  open  whether  there  actually  was  a  raising  of 
the  dam  in  this  case,  to  throw  back  the  water  and  flood 
the  soil  of  the  plaintiff".  Nothing  that  has  happened  by 
agreement,  or  otherwise,  can  bar  the  investigation. 

I  lay  the  legal  questions  out  of  the  case.  I  reserve  thje 
points  ;  though  it  would  not  seem  to  me  at  present  that  there 
is  a  great  deal  in  them.  A  devisee  may  be  considered  as 
for  some  purposes,  a  transferee,  or  alienee  ;  but  is  so  identi- 
fied in  his  interest  with  that  of  the  testator,  that  his  situation 
may  seem  to  be  different  from  that  of  a  purchaser,  so  as  to 
be  considered  such  an  alienee  that  the  writ  would  not  lie 
against  him,  or  that  notice  should  be  necessary.  But  in  this 
ease  there  has  been  notice  by  action  and  otherwise ;  the 
lis  pendens,  the  notoriety  of  the  dispute  j  the  defendant  in 
doing  acts  himself,  adding  to  the  nuisance  and  continuing  it. 
But  these  matters  will  be  considered  in  bank.  The  jury 
need  not  charge  their  minds  with  a  consideration  of  these 
at  present.  I  will  reserve  them  for  the  consideration  of  the 
judges  in  term ;  a  mere  matter  of  fact  will  at  present  be  left 
to  the  jury  ;  is  there  a  trespass  or  nuisance,  by  the  defendant, 
upon  the  land  of  the  plaintiff",  and  how  much  the  damages  ? 


Law  Miscellanies.  457 

Livezey,  "J 

V. 

Gorgas. 


V.    '    I   May  3d,  1811. 


Verdict. 
And  the  recognitors  of  assize  aforesaid,  say,  that  the  said  Johh 
Livezey,  and  Joseph  Livezey,  were  seized  in  their  demesnes  as  of 
fee  of  and  in  the  water  mill,  mill  race,  water  course,  stream  of 
water,  and  lands  and  tenements  with  the  appurtenances — in  the  said 
plaint  mentioned,  and  as  therein  specified,  and  as  the  slid  John 
and  Joseph  Livezey,  have  above  declared.  And  further  the  recog- 
nitors aforesaid,  say  that  the  above  mentioned  Benjamin  Gorgas, 
Jacob  Gorgas  and  John  Weiss,  unjustly  and  without  judgment,  the 
said  certain  wall  and  dam,  in  the  view  of  the  said  recognitors  pla- 
ced, and  in  the  said  plaint  specified,  did  levy  and  raise  to  the  height 
of  2  inches  and  one  half  of  one  inch  from  a  line  2  inches  and  a  half 
below  the  lower  edge  of  a  ceitain  hole  of  one  inch  diameter,  bored 
in  the  rock  at  the  castermost  end  of  the  said  dam  thereby  obstruct- 
ing the  said  mill  race  and  water  course,  and  the  said  stream  of 
water  running  from  the  said  mill  of  the  said  John  Livezey  and 
Joseph  Livezey,  to  the  nuisance  of  the  said  freehold  of  the  said 
John  Livezey  and  Joseph  Livezey,  but  not  with  force  and  arms,  as 
the  said  John  and  Joseph  Livezey,  have  above  complained.  And 
the  recognitors  aforesaid  assess  the  damages  of  the  said  John  Li- 
vezey and  Joseph  Livezey,  occasioned  by  the  obstruction  and  nui- 
sance aforesaid,  beyond  their  costs  and  charges,  by  them  in  their 
suit  aforesaid  expended  at  S533  and.^^^  and  for  their  costs  and 
charges  aforesaid,  at  6  cents.  And  as  to  the  other  defendants,  the 
recognitors  aforesaid  find  in  their  favour. 


<'  Whereby  he  Is  endamaged  to  such  a  value.*'  3  Bl.  Com.  295. 

ACCORDING  to  the  old  doctrine, Me  sum  must  be  cer- 
tain^ and  declared  upon  as  such.  Hence,  it  has  been  a  ques- 
tion, whether,  on  a  declaration  on  a  bond,  or  covenant,  a  jury 
may  not  find  damages,  beyond  the  penalty.  Whatever  tech- 
nical embarrassment  there  may  have  been,  or  may  still  be, 
in  a  court  of  law  in  England,  as  to  this  matter,  there  is  none, 

3  M 


^j-s  Law  Miscellanies. 

and  ought  to  be  none,  with  us.     But  as  to  the  sum  ^'tven  by 
the  verdict^  being  more  than  the  sum  laid  in  the  declaration., 
that  is  a  technical  objection  which    has  received  some  coun- 
tenance by  Implication^  but  on  which  I  do  not  know  of  any 
decision.     The  implication  I  speak  of,  is,  the  remititur  which, 
ex  majore  cautela,  U  has  been  usual  to  make.     I  have  known 
counsel  remit  from  an  honest  and  fair  demand,  where,  from 
some  oversight,  the  sum  laid,  had  happened  to  fall  short ; 
and  it  appeared  to  me  to  be  one  of  those  technical  formali- 
ties, which  are   in  the  way  of  substantial  justice,  that  was 
thought,  to  render  this  retnittin^-  necessary.     The  principles 
are  correct,  and  further  justice,  that  the  writ  shall  agree  with 
the   precipe ;  the  declaration   with  the   writ ;  the  evidence 
Xvith  the  declaration  ;  the  verdict  with  the  evidence  ;  and 
that  the  judgment  shall   correspond  with  the  verdict;  and 
the  execution  pursue  the  judgment.     But  the  less  or  more  of 
the   sum   laid   in  the  declaration  ought  not  to  affect.     The 
more  does  not  affect ;  and  why  sliould  the  less  ?  It  is  as  im- 
material as  the  day  laid,  and  ought  to  be  so  held.     It  is  not 
what  a  plaintiff  demands,  but  what-  he  proves,  that  is,  and 
ought  to  be  the  measure  of  his   damages.     In  an  action  of 
slander,  words  spoken,  since  the  action  brought,  that  are  not 
of  a  nature  to  support  a  new  action^  and  import  a  continuance 
of  the  sainc  slander,  may  be  given  in  evidence,  at  least,  ac- 
cording to  some  authorities,  in  aggravation  of  the  damages, 
and  these  words  may  have  been  spoken,  since  the  declaration 
filed.     Be  that  as  it  may,  I  take  it,  that  in  an  action  for  as- 
sault, battery,  and  wounding,  evidence  may  be  given  of  an 
injury  consequent  upon  the  battery,  and  the  effect  of  it,  even 
after  the  declaration  filed ;  as  the  loss  of  an  eye,  or  the  use 
of  a  limb ;  and  this  may  entitle   to   greater  damages,  than 
was  in  the  contemplation  of  the  party,  at  the  time  of  the  suit 
brought,  or  the  filing  of  the  declaration.     But  I  do  not  see 
any  principle  of  justice  that  could  be  in  the  way  of  a  reco- 
very, if  it  should  have  so  happened \\\2X  the  suitor  had  omit- 
ted to  make  an  application  for  leave  to  amend. 

The  idea  of  a  plaintiff  recovering  no  more  damages  than 
he  counts  for,  licld  with  great  proprieiv  and  good  reason,  in 


Law  Miscellanies.  4itO 

detinue  and  in  debt;  in  detinue^  because  the  judgment  is  to 
have  the  thing  detained;  and  damages,  if  the  thing  itself 
cannot  be  had.  The  value  which  the  plaintiff  has,  himself 
set  upon  the  article,  must  be  taken  to  be  the  measure. 
Jenk.  218,  pi.  25.  This  principle  has  been  transferred,  with- 
«uut  examination,  into  other  actions,  where  the  reason  does 
not  apply.  This,  where  the  jury  do  not  frst  look  at  the  va- 
lue of  the  thing  in  controversy,  and  then  find  damages  as  a 
consequence ;  but,  at  the  damages  in  the  first  instance,  for 
the  wrong  done, 


*' The  Avhole  of  this  process  is  denominated  the  pleading.''     ^ 
Bl.Com.  310. 

THERE  is  a  variation  in  the  practice  of  the  Pennsylvania 
courts  from  that  of  England ;  not  in  principle,  but  in  the  less- 
er length  of  the  pleadings.     The  original  process  is  shorter^ 
because  an  ac  etiam  ;  or  quo  minus ;  or  other  fiction^  is  not 
necessary  to  give  a  court  jurisdiction ;  wliich  is  the  case  in 
that  of  the  king's  bench,  or  exchequer,  where  jurisdiction  is 
taken  of  matters  that  properly  belong  to  the  court  of  commo7i 
pleas.     But  the  process  of  summons,  or  capias,  or  other  writ, 
is  the  same,  substituting  the  name  of  the  commomvealtk  for 
that  of  the  king.     The  declaration  also,  which  is  the   next 
step  in  the  cause,  on  the  part  of  the  plaintiff,  is-  the  same ; 
and  therefore  we  take  the  English  forms  which  are  devised, 
in  the  different  kinds  of  action,  to  give  a  statement  of  the 
demand   in  the  fewest  and  clearest  words  possible ;  though 
attornies  will  add  count  upon  count,  where  a  single  one  might 
suffice.     These  will  be   sometimes  necessary  ;    because  the 
party,  or  the   attorney  for  him,  may  not  be  able  always   to 
know  what  he  will  be  able  to  make  out,  or  prove.     As  for 
instance,  in  a  count,  or  statement,  he  may  allege  that  the  de- 
fendant contracted  to  pay  him  so  much  for  a  certain  article 
which  he  sold,  and  delivered  to  him.     He  may  not  be  cer- 
tain that  he  will  be  able  to  make  out  that  it  was  at  such  i\ 


460  Law  Miscellanies. 

certain  price ;  and,  therefore,  he  will  allege  that  having  sold, 
and  delivered  such  article,  the  defendant  agreed  to  pay  him 
as  much  as  it  was  worth.  The  same  in  the  case  of  labour, 
or  service  done  and  performed  :  the  same  in  all  cases,  where 
if  he  should  not  be  able  to  make  out  the  demand  in  one  way 
he  might  in  another. 

By  our  act  of  Assembly,  21    March,  1806,  Sec.  5,  it  is  provi- 
ded,  "  That  in  all  cases  where  a  suit  is  or  may  be  brought  in  any 
court  of  record  witliin  this  commonwealth,  for  the  recovery  of  any 
debt  founded  on  a  verbal  promise,  book  account,  note,  bond,  penal, 
or  single  bill,  or  all,  or  any  of  them,  and  which  from  the  amount 
thereof  may  not  be  cognizable  before  a  justice  of  the  peace,  it  shall 
be  the  duty  of  the  plaintiif,  either  by  himself,  his  agent  or  attorney, 
to  file  in  the  office  of  the  prothonotary,  a  statement  of  his,  her  or 
their  demand  on  or  before  the  third  day  of  the  tei'm,  to  which  the 
process  issued  is  returnable ;    particularly  specifying  the  date  of 
the  promise,  book  account,  note,  bond,  penal,  or  single  bill,  or  all, 
or  any  of  them,  on  which  the  demand  is  founded,  and  the  whole 
amount  what  he,  she  or  they  believe  is  justly   due  to  him,  her  or 
them  from  the  defendant ;  and  it  shall  be  the  duty  of  the  defendant, 
at  least  twenty  days  before  the  next  succeeding  term  to  which  the 
process  issued  is  returnable,  to  file  in  the  office  aforesaid,  either 
by  himself,  his  agent  or  attorney,  a  statement  of  his,  her  or  their 
account,  if  any  he  or  she  hath  against  the  plaiiitiflF 's  demand,  and 
particularly  specifying  what  he,  she  or  they  believe  is  justly  due 
from  him,  her  or  them  to  the  plaintiff;  and  it  shall  be  the  duty  of 
the  prothonotary  to  file,  without  the  agency  of  an  attorney,  such 
statements ;    and  it  shall  be  the  duty  of  the  parties  to  appear  in 
their  proper  persons,  by  their  agents  or  attornies,  on  the  third  day 
of  the  next  succeeding  term,  to  which  the  process  issued  is  return- 
able, when  the  term  is  for  one  week,  and  on  the  second  Monday 
of  the  term  when  the  same  is  to  continue  two  weeks,  befoi*e  the 
court,  which  shall  have  issued   the   same  ;  but  if  the  plaintiif  or 
plaintiffs  shall  neglect  to  appear  as  aforesaid,  the  court  shall  order 
a  non-suit  to  be  entered ;  and  if  the  plaintiff  shall  appear,  but  the 
defendant  or  defendants  shall  neglect  to  appear  as  aforesaid,  and 
make  defence  against  the  demiuid  of  the  plaintiff  or  plaintiffs,  it 
;-liall  be  the  duty  of  the  court  to  give  judgment  by  default  against 
the  defendant  for  the   sum   which  shall  appear  to  be  due ;  but  if 
the  parties  appear  as  aforesaid,  and  the  defendant  refuse  to  con- 
tVssjudgmer'    *'-■  cause  shiiU  be  tried  by  a  jury,  or  on  the  agree- 


Law  Miscellanies.  461 

ment  of  the  parties,  it  may  be  referred  agreeably  to  the  provisions 
of  this  act ;  and  the  plaintiflf  's  atttorney  shall  not  be  entitled  to  a 
judgment  fee,  in  any  action  of  debt,  whether  the  judgment  be  con- 
fessed by  the  defendant  or  rendered  on  the  repoil  of  referees,  or 
on  the  verdict  of  a  jury  ;  and  if  the  plaintiff  on  trial  being  had  as 
aforesaid,  does  not  recover  more  than  the  amount  for  which  the 
defendant  was  willing  to  confess  judgment,  he  shall  not  recover 
any  costs  that  accrued  on  the  cause  subsequent  to  the  offer  of  con- 
fessing judgment,  excepting  the  costs  of  issuing  and  serving  a 
writ  of  execution  when  the  same  may  be  necessary." 

Our  courts,  in  every  case  before  this  act,  where  the  de- 
claration was  not  sufficiently  explicit^  to  enable  a  defendant 
to  know  what  demand  to  meet,  would  direct  a  special  state- 
ment of  the  items  to  be  filed  ;  and  this  in  matters  of  account 
was  always  done,  if  the  party  demanded  it.  And,  it  was 
also  a  rule  in  most  districts,  that  the  declaration  or  statement 
should  be  filed  at  the  return  of  the  process^  or  during  the 
term,  if  an  appearance  had  been  entered,  or  special  bail  to 
the  action,  if  in  a  case  that  bail  could  be  required. 

I  do  not  see  any  thing  gained  by  this  act ;  for  surely  the 
party  might  always  have  been  his  own  attorney.  It  is  pro- 
vided by  the  constitution,  that  "  he  shall  be  heard  by  himself 
or  his  counsel." 

The  idea  of  the  legislature  was,  to  enable  the  better  every 
man  to  be  his  own  lawyer.  But  every  man  will  not  chuse  to 
be  his  own  lawyer,  so  far  as  respects  the  conduct  of  a  suit 
in  court ;  for  he  will  not  find  his  account  in  it ;  any  more 
than  in  being  his  own  blacksmith  or  taylor.  For  though 
there  are  no  rules,  merely  arbitrary  in  conducting^  or  defend- 
ing a  suit  in  court,  but  all  is  founded  in  reason  and  good 
sense;  yet,  attention  divided  upon  different  objects,  distracts; 
and  the  habit  of  doing  a  thing  gives  a  facility  in  doing  it. 
There  is  no  magic  in  the  thing,  or  mystery,  but  as  the  good 
man  of  Auchtermuchty  found,  according  to  the  old  tale,  it 
was  best  to  stick  to  his  stots,  (oxen)  and  let  the  housewife 
mind  her  kirn,  (churn)  and  her  children.  But  to  go  on  with 
my  observations  to  the  student.  Suppose  yourself  attorney 
or  counsel  for  the  defendant,  what  will   you  do  on  the  r?  - 


462  Law  Miscellanies. 

turn  of  }3rocess,  say  a  summons ;    or  rather,  what  can  you 
do  in  any  possible  case  ? 

Answer.  I  can  object,  on  his  behalf  to  the  jurisdiction 
of  the  justice,  or  of  the  court,  and  allege  that  they  have  no 
cognizance  of  a  matter  in  his  case;  he  is  not  amenable  to 
that  tribunal.  If  that  is  overruled,  I  can  say,  he  is  entitled 
to  other proceas^  and  move  to  quash  the  writ.  If  that  is  over- 
ruled, I  can  allege  that  the  adversary  has  no  right  to  sue,  as 
being  an  alien  enemy,  or  for  other  cause ;  or  that  the  de- 
fendant ought  to  be  sued  at  all,  or  alone,  but  with  others,  &c. 
After  the  declaration  filed,  or  statement  made,  in  abate- 
ment^ thp  preceding  matter  being  overruled,  I  could  demur 
to  the  declaration,  or  make  a  pause,  and  ask  whether  such 
a  declaration  or  statement  contained  cause  of  action,  &c. 

This  being  overruled,  I  could  plead,  in  bar,  as  we  say, 
such  as  a  former  recovery  for  the  same  cause  of  action.  All 
this  course  of  proceeding,  you  will  see  in  Chittij  on  Pleading'^ 
which  I  have  just  put  into  your  hands. 

Replication  to  your  plea  will  be  a  step  that  may  be  taken 
on  the  part  of  the  plaintiff.  You  demur,  or  make  a  pause 
and  put  it  to  the  court  to  say,  whether  such  a  replication,  is 
not  a  departure  from  the  point,  or  can  be  made. 

If  this  is  overruled,  you  will  rejoin,  and  make  an  answer 
to  what  he  had  replied  to  your  plea.  He  may  surrejoin  un- 
til it  comes  to  a  point  in  issue  between  you.  If  you  join  is- 
sue, it  closes  the  pleadings. 

I  state  these  things  just  to  give  an  outline,  and  to  shew 
that  it  is  nothing  more  than  bringing  the  parties  to  a  point, 
that  it  may  be  seen  what  is  the  controversy  between  them. 

At  an  early  period,  in  England,  all  those  matters  took 
place  at  the  trial  when  the  parties  came  into  court;  and  the 
altercation ;  saying  that  the  party  could  not  sue  in  that  court ; 
or  sue  at  all  from  some  disability ;  or  that  he  could  not  sue 
alone ;  or  that  he  the  defendant  ought  not  to  be  sued  alone, 
but  with  another  jn  the  bond  for  instance ;  or  that  his  action 
was  frivvolous,  such  as  for  grinning  at  him,  &c.  &c.  But  an 
improvement  was  made  upon  all  this  in  due  time,  for  the  dis- 
uatch  of  business,  and  all  these  allegings  and   denials,  and 


Law  Miscellanies.  463 

fending,  and  proving,  as  the  phrase  is,  came  to  be  put  into 
writing.  These  might  be  in  short  minutes  at  first ;  but  in  due 
time,  for  the  greater  certainty,  the  statements  came  to  be 
made,  on  both  sides,  at  greater  length. 

All  the  difference  then  is  with  us  that  we  take  the  mid- 
way, as  it  was  in  the  second  stage  of  the  English  custom,  and 
are  entered  in  brief  with  us  in  Pennsylvania. 


\ 


"  A  common  juiy  is  one  returned  by  the  sheriff  according  to  the 
directions  of  the  statute,  3  Geo.  2,  c.  25,  Avhich  appoints,  Sec. 

As  the  jurors  appear  when  called,  they  shall  be  sworn  unless 
challenged  by  either  party."     3  Bl.  Com.  358. 

BEFORE  this  statute,  the  sheriff  summoned,  at  his  own 
discretion^  unless  in  special  cases^  inhabitants  of  th«  county. 
The  law  was  the  same  with  us  in  this  state  before  the  revo- 
lution and  afterwards,  but  by  acts  of  assembly  on  this  head, 
provisions  are  made  even  in  the  return  of  a  common  jury, 
for  the  purpose  of  giving  a  fairer  chance  of  an  impartial  se-^ 
lection  and  return. 

By  an  act  of  29th  March,  1805,  the  sheriff  and  commis- 
sioners, or  any  two  of  them  with  the  sheriff,  shall  meet  in 
each  county,  at  the  seat  of  justice,  at  least  thirty  days  pre- 
vious to  the  first  court  of  common  pleas  in  each  year^  and  se- 
lect from  the  list  of  taxables,  the  names  of  a  suitable  num 
ber  of  sober  and  judicious  persons  to  serve  as  jurors  for  that 
year,  and  write  the  name  of  each  person  so  selected  on  a  small 
piece  of  paper,  each  paper  as  nearly  alike  in  size  and  shape 
as  may  be,  so  that  the  name  docs  not  appear ;  two  wheels 
shall  be  provided.  No.  1,  and  No.  2  j  the  names  for  grand 
jurors  shidl  be  put  in  No.  1  ;  those  for  petit  jurors  in 
No.  2.  The  wheels  shall  then  be  turned  sufficiently  to 
intermix  the  papers,  and  having  first  drawn  from  the 
proper  wheels  a  number  of  names  sufficient  for  thcthen  next 
court,  the  wheels  shall  he  locked  up  and  scale'd,   kc.  mid  J?o 


464  Law  Miscellanies. 

in  the  same  manner,  thirty  days  previously  to  each  succeed 
ing  court. 

'  The  name  of  each  person  summoned  and  impannelled 
according  to  the  provisions  of  the  act,  shall  be  written  on  a 
distinct  piece  of  paper,  of  an  equal  size  and  similar  shape,  as 
nearly  as  may  be,  and  rolled  up  and  put  into  a  box,  and 
when  any  cause  shall  be  ready  for  trial,  some  disinterested 
person,  by  direction  of  the  court,  shall  in  open  court,  after 
having  well  mixed  the  papers,  draw  out  one  after  another, 
until  a  sufficient  number  shall  appear  and  be  approved. 

A  supplement  to  this  act,  passed  4th  Ap,  1807,  provides, 
that  whenever  process  shall  be  issued  for  summoning  a  jury, 
the  sheriff  shall  immediately  give  notice  to  the  commission- 
ers, who  shall  proceed  to  draw  a  sufficient  number  of  jurorR 
for  the  next  court. 

By  an  act  passed  4th  April,  1809,  it  is  provided,  that, "  in 
all  civil  suits,  each  party  shall  be  allowed  to  challenge  two 
jurors  peremptorily;  and  in  all  criminal  prosecutions  where- 
in peremptory  challenges  have  not  heretofore  been  permitted 
by  law,  the  defendant  or  defendants  shall  be  allowed  to  chal- 
lenge four  jurors  peremptorily."* 

By  sec.  12,  of  the  act  of  21  March,  1772,  which  provides 
the  manner  of  giving  possession  to  the  landlord,  where 
tenant  holds  over,  a  jury  of  substantial  freeholders  is  direct- 
ed to  be  summoned. 

In  the  case  of  special  juries,  our  law  is  similar  to  that  un- 
der the  statute  3  Geo.  2,  c.  Z5, 

*  This  improvement  in  a  trial  by  jury,  and  it  is  a  great  im- 
provement, was  on  the  suggestion,  and  at  the  instance  of  the  lately 
deceased  Mr.  Mountain,  of  Pittsburgh,  of  whom,  did  the  nature  of 
this  /iublicatio7i  permit  an  eulogium  on  his  personal  integ'rity  an(' 
professional  talent Sy  I  should  have  much  to  say,  but  the 

Scd  nunc  non  erat  his,  locus 

will  apply. 


Law  Miscellanies.  465 

"  Thus  much  for  costs  to  which  judgments  are  a  necessary  ap- 
pendage."    3  Bl.  Com.  399. 

THE  minute  variations  in  the  law  of  Pennsylvania  from 
that  of  England,  with  regard  to  costs,  are  considerable. 
They  must  be  collected  from  the  acts  of  assembly,  and  the 
adjudications  of  the  courts.  In  case  of  granting  new  trials, 
the  act  of  21  March,  1806,  sec.  3,  has  made  some  varia- 
tion from  what  the  law  was  in  this  state  before. 

It  is  provided  "that  in  all  cases  where  a  verdict  of  a  ju- 
ry shall  be  set  aside,  a  new  trial  shall  be  had  on  the  same 
conditions  as  to  costs,  and  daily  pay  as  are  above  prescribed, 
in  cases  of  a  new  trial  on  the  report  of  referees  being  set 
aside.  If  he  shall  prosecute  his  action,  and  not  recover  a 
sum  equal  or  greater  than  was  at  first  axvarded^  he  shall  not 
have  judgment  for  costs,  and  shall  pay  the  defendant  seventy- 
five  cents  per  day  while  attending  on  the  same,  and  if  the 
defendant  file  such  exceptions,  and  the  award  be  set  aside 
by  the  court,  and  the  plaintiff,  by  a  new  action,  shall  recover 
a  sum  equal,  or  greater  than  the  original  award,  then  and  in 
that  case,  the  plaintiff  shall  have  judgment  for  all  the  costs 
accrued  on  that  suit,  together  with  seventy-five  cents  per 
day,  whilst  attending  the  same." 

A  new  trial  is  granted  by  the  English  judges  ;  and  was 
with  us  before  this  act,  on  condition  of  paying  the  costs  of 
xht  former  trial;  or  costs  to  abide  the  event.  That  is,  the 
costs  of  the  trial  to  go  into  the  bill;  and  whoever  fails,  pays 
the  whole  costs  in  the  cause.  It  is  to  be  remarked  that  the 
vtoxdisuit  is  used  in  the  act;  and  therefore  it  is  the  costs 
of  the  whole  proceeding  that  are  in  question  ;  not  a  particular 
part  or  portion,  such  as  the  costs  which  have  accrued,  from 
that  stage  to  which  the  person  applying  for  anew  trial,  wish- 
es to  be  put  back,  which  costs  might  be  ordered  to  be  paid 
down;  or  to  abide  the  event. 

But  tills  section  would  not  seem  to  have  a  reference  to 
actions  where  land  is  to  be  recovered ';  for  the  words  are, 
"  not  recover  a  sum  equal  or  greater,"  which  can  only  be  in 
case  whiY'i  ;t  vj/w  i^  to  be  recovered.     It  would  seem  to  It^ 


460  Law  Miscellanies. 

an  omitted  case,  where  land  is  demanded;  and  therefore  the 
law  must  remain  the  same  as  it  was  before,  as  to  costs  of  suity 
on  setting  aside  award,  or  a  verdict  in  ejectment. 

But,  by  the  act  of  20  March,  1810,  considerable  altera- 
tions from  this  act  have  been  made,  and  in  regard  of  costs* 
By  sec.  9,  "  no  appeal  shall  be  allowed  to  either  party,  until 
the  appellant  pay  all  the  costs  that  may  have  accrued  on  such 
suit  or  action."  Quere,  will  not  this  amount  nearly  to  a  fi?^«ifl/ 
ofan  appeal^  to  the  poor  mati  altogether  ?  In  a  case  lately  brought 
from  Luzerne  county,  by  writ  of  error  to  the  term  at  Sunbu- 
ry,  the  costs  of  the  different  arbitrations,  amounted,  if  I  re- 
collect right,  to  the  sum  of  S  276. 

For  the  further  amendments  by  this    act,   and    the   ad- 
judications of  the  court  upon  it,  I  refer  to  5  Smith's  laws,  139. 


"  The  king-  (and  any  person  suing  to  his  use)  shall  neither  pay 
nor  receive  costs."  3  Bl.  Com.  400. 

THE  acts  of  assembly  have  made  a  considerable  altera- 
tion from  the  law  as  it  is  in  England,  with  respect  to  costs. 

By  an  act  entitled  "  A  supplement  to  the  penal  laws  of 
this  state,"  passed  23d  Sept.  1791,  it  is  provided,  Csec.  11,) 
that  costs  accruing  on  bills  returned  ignoramus  shall  be  paid 
by  the  county. 

By  sec.  13,  of  the  act  of  1791,  the  county  shall  pay  the 
costs  of  unfounded  charges,  preferred  before  a  justice  of 
the  peace  or  other  magistrate  having  jurisdiction  in  the 
case. 

By  sec.  15,  where  a  defendant  shall  be  convicted  of  a 
crime  punishable  capitally  or  by  imprisonment  at  hard  labour, 
the  county  in  which  the  crime  hath  been  or  shall  be  commit- 
ted shall  pay  the  costs,  if  defendant  hath  not  property  suffi- 
cient to  discharge  the  same  ;  but  where  the  same  person 
hath  been  or  shall  be  convicted  of  divers  offences  at  the  same 
term  or  sessions,  the  county  shall  pay  the  costs  of  one  indict- 
ment onlv. 


Law  Miscellanies.       _  4o/' 

By  a  supplement  to  the  penal  laws  of  this  state,  March 
20,  iror,  "  all  costs  accruing  on  all  bills  of  indictment  found 
by  the  grand  jury  of  the  city  or  any  county  in  this  common- 
Avealth,  charging  a  party  with  any  felony,  breach  of  the  peace, 
or  other  indictable  offence,  shall,  if  such  party  be  agquitted 
by  a  petit  jur)',  on  the  traverse  of  the  same,  be  paid  out  ot 
the  county  stock,  by  the  city  or  county  in  whicTi  the  prose- 
cution commenced." 

But  it  being  found  that  these  laws  obliging  the  counties 
to  pay  the  costs  of  prosecution  where  the  party  indicted 
was  acquitted,  tended  to  promote  litigation,  "  an  act  to  regu- 
late the  payment  of  costs  on  indictments"  was  passed,  8th  De- 
cember, 1804,  which  provides  that  "in  all  prosecutions, 
cases  of  felony  only  excepted,  if  the  bill  or  bills  shall  be  re- 
turned "  ignoramus,"  the  grand  jury  who  returns  the  same 
shall  decide  and  certifj'  on  such  bill,  whether  the  county  or 
the  prosecutor  shall  pay  the  costs  of  prosecution  ;  and  in 
all  cases  of  acquittals,  by  the  petit  jury,  on  indictments  for 
the  offences  aforesaid,  the  jury  trying  the  same  shall  deter- 
mine, by  their  verdict,  whether  the  county  or  the  prosecutor 
or  the  defendant  or  defendants,  shall  pay  the  costs  of  prose- 
cution," &c. 

There  is  an  act,  passed  in  1805,  explanatory  of  the  act 
of  1804,  which,  as  well  as  the  second  section  of  thrs  "  act  ex- 
planatory" &c.  is  made  pypetu.al  by  that  of  29th  March,  1809. 
See  Smith's  laws,  in  note,  vol.  2,  548. 


•'  To  this  real  sullcnnes,  but  affected  timidity  ol"  the  judges,  such 
?  7iarroTjnesB  of  thinking  was  added,  that  every  slip  (even  of  a^ 
syllable  era  letter)  was  now  held  to  be  fatal  to  the  pleader,  and 
overturned  liis  client's  cause."     3  Bl.  Com.  410. 

BY  the  statutes  of  Jeofails  in  England,  whicfe  had  been 
adopted  here,  great  relief  had  been  given  in  case  of  slips  of 
the  pen  or  mispellings,  Sec.  defects  in  process  or  declaration, 
pleading,  he.     But  by  the  6th  sec.  of  the  act  to  regulate  ar^ 


468  Law  Miscellanies. 

bitrations  and  proceedings  in  courts  of  justice,  passed  21st 
March,  1806,  "suits  brought  in  any  court  of  record  in  this 
commonwealth  shall  not  be  set  aside  for  informality,  if  it 
appear  that  process  has  issued  in  the  name  of  the  common- 
wealth, against  the  defendant  for  monies  due,  or  for  dama- 
ges by  trespass,  or  otherwise,  as  the  case  may  be,  that  said 
process  was  served  by  the  proper  officer,  and  in  due  time,  nor 
any  plaintiff  non-suited  for  informality  in  any  statement  or  de- 
claration filed,  or  by  reason  of  any  informality  in  entering 
a  plea  ;  but  when  in  the  opinion  of  the  court,  such  informali- 
ty will  affect  the  merits  of  the  cause  in  controversy,  the  plain- 
tiff shall  be  permitted  to  amend  his  declaration  or  statement, 
and  the  defendant  may  alter  his  plea  or  defence  on  or  be- 
fore the  trial  or  cause,  and  if  by  such  alteration  or  amend- 
ment the  adverse  party  shall  be  taken  by  surprise,  the  trial 
shall  be  postponed  until  the  next  court." 

Obstinacy  is  the  characteristic  of  an  Englishman  ;  irras- 
cibility  that  of  the  Scot.  Ea  est  pervicacia,  says  Tacitus  of 
the  Germans.  One  would  think,  says  Blackstone,  that  Taci- 
tus was  describing  a  modern  Englishman,  4  Bl.  Com.  171. 
Per  fervidum  Scotorum  ingenium,  says  Buchanan,  in  his 
History  of  Scotland. 

The  truth  is,  obstinacy  and^rmness^  spring  from  the  same 
root,  virtue.     It  is  obstinacy  where  the  cause  is  bad ;    it  is 
Jirmness  where  the  cause  is  good.     What  could  make  the 
judges  sullen,  in  regard  of  amendments  which  they  had  the 
power  to  make,  being  within  the  province  of  the  practice  of 
the  law  ?  I  can  conceive  no  cause,  but  narrowness  of  think- 
ing, which  Blackstone  hints  at  ;  and,  the  habit  of  travelling 
long  in  the  same  track.     The  ass  is  the  most  obstinate  of  all 
animals  ',    this  from  its  nature  ;    and,  the  habit  of  going  in 
the  same  path,  produces   with  men  a  dread  of  innovation. 
Hence  the  timidity  of  which  Blackstone  speaks.     It  is  from 
these  reasons,  that  little  improvement  is  to  be  expected  from 
the  old   in  any  theory  of  science.     There  is   an  attachment 
to  prescription  in  physicians,  to  precedent  in   lawyers,  and 
they  are  afraid  to  depart  from  rule.    Old  generals  are  afraid 
of  accidents,  says  Marshal  Berwick  in  his  Memoirs.     They 


Law  Miscellanies.  469 

have  character  to  lose ;  and  by  according  to  what  has  been 
done  before,  they  risk  less  than  in  departing  from  it ;  for 
they  have  precedent  to  justify.  And  it  is  in  the  application 
of  the  rule  to  the  case,  that  the  judgment  errs.  Departure 
from  rule  can  be  justified  only  by  sitccess. 

Judges  would  not  undertake  to  amend  pleadings,  be- 
cause they  had  no  precedent  of  this,  or  that,  being  amended  ; 
and  hence  at  an  early  period  the  first  statute  of  Jeofails, 
14  Ed.  3.  c.  6.  viz.  "  That  by  the  misprision,  wheresoever 
it  be,  no  process  shall  be  annulled,  or  discontinued  by  mis- 
taking in  writing,  one  syllable,  or  one  letter,  too  much  or  too 
little  ;  but  as  soon  as  the  thing  is  perceived  by  challenge  of 
the  party,  or  in  other  manner,  it  shall  be  hastily  amended,  in 
due  form,  without  giving  advantage  to  the  party  that  chal- 
lengeth  the  same,  because  of  such  misprision." 

The  timidity  of  judges  arises  a  good  deal  from  a  respect 
for  the  profession  ;  and  strict  practitioners,  who  are  not  al- 
ways the  most  enlightened  upon  general  principles,  consider 
it  as  affecting  the  craft  to  lessen  mystery,  or  to  detract  from 
precedent.  With  regard  to  these,  it  is  to  be  observed, 
that,  in  some  measure,  small  lawyers  at  least,  find  their 
account  in  it;  and  it  may  be  said  of  them,  hac  arte  vivitur ; 
by  this  craft  do  they  live.  We  see  therefore  the  expedi- 
ency of  the  provisions  of  this  act  of  the  legislature,  which 
is  more  than  has  been  provided  by  any  of  the  English  sta- 
tutes; and  is  an  improvement  of  the  practice  as  it  was  be- 
fore, in  this  state. 


"  If  the  plaintiff  recovers  in  an  action  real  or  mixed,  whereby 
the  seisin  or  possession  of  land  is  awarded  to  him,  the  writ  of  ex- 
ecution shall  be  an  habere  Jacias  scisinam,  or  writ  of  seisin  of  a 
freehold "  3  Bl.  Com.  412. 

BY  the  law  of  England,  unless  in  the  case  of  a  chattel  in- 
terest, which,  upon  a  fieri  facias,  is  taken  possession  of  by  the 
■sheriff,  he  cannot  make  delivery  to  the  purchaser;  so  that,  in 


A70  Law  Miscellakieb. 

ease  of  the  sale  of  a  freehold  interest,  th6  purchaser  must 
recur  to  his  ejectment ;  and,  after  recovery,  must  have  an 
habere  facias  possessionenn  to  enable  the  officer  to  give  pos- 
session. In  the  case  of  the  sale  of  a  lease-hold  interest, 
which  is  a  chattel  real,  possession  may  be  immediately  giveil; 
The  case  in  2  Shoxver^  85,  which  lays  it  down,  that,  "  on  the 
sale  of  a  term^  the  sheriff  cannot  turn  out  the  tenant  but  the 
vendee  must  bring  an  ejectment,  was  cited  in  the  case  of 
Taylor  v.  Cole,  8  T.  R.  298,  and  yet  there,  justice  Buller 
gives  it  as  his  opinion,  that  the  sheriff  ntiight  turn  out  the  te- 
nant." Addison's  Rep.  204,  Pennsylvania  v.  Kirpatrick  and 
JMenaugh. 

In  this  case  possession  had  been  taken  by  the  purchaser 
under  a  sale  by  the  sheriff  without  bringing  an  ejectment,  and 
recovery,  and  writ  of  habere  facias.  But  an  indictment  of 
forcible  entry  and  detainer  was  the  consequence  ;  and  there 
vfz.s  judgment  for  the  commowealth^  and  restitution  awarded. 
The  observations  of  judge  Addison  in  that  case  led  to  an  act 
passed  6  Ap.  1802,  "  To  enable  purchasers  at  sheriff's  or  co- 
roner's sales  to  obtain  possession,"  which  provides,  that 
where  lands  shall  be  sold  by  the  sheriff,  by  virtue  of  an  ex- 
ecution, the  purchaser  may  give  notice  to  the  defendant,  or 
person,  in  possession,  and  require  him  to  surrender  the  posses- 
sion within  three  months  :  on  refusal  to  surrender,  the  purcha- 
ser may  complain  to  any  two  justices  of  the  county,  who  on 
due  proof,  &c.  shall  issue  their  summons  to  the  sheriff,  coni- 
manding  him  to  summon  before  the  justices,  twelve  freehold- 
ers, and  also  the  defendant  to  shew  cause  why  delivery  of 
possession  should  not  be  forthwith  made,  and  if  on  hearing  the 
parties,  or  non-appearance  of  the  defendant,  the  jury  find 
against  the  defendant,  the  justices  may  make  a  record  of  the 
same,  assess  damages,  and  direct  the  sheriff  to  deliver  full 
possession;  and  no  certiorari  which  may  be  issued  to  remove 
such  proceedings,  shall  be  a  supersedeas,  or  have  any  effect 
to  prevent,  or  delay  the  execution  aforesaid,  or  the  delivery 
of  the  possession  agreeably  thereto. 

By  an  act  of  21  March,  J772,  the  same  proceedings  arc 


Law  Miscellanies.  4T% 

provided  for  the  landlord,  where  the  tenant  for  f^rm  <?/*  ?/ears, 
or  at  rvill,  unjustly  holds  over. 

There  are  two  British  statutes,  that  of  4th  Geo.  2,  c. 
28;  and  11  Geo.  2  c.  19,  by  which  the  lessor  or  reversioner 
may  recover  by  action  of  debt  double  the  yearly  value  of  the 
premises  ;  and  a  proceeding  by  ejectment,  but  not  our  sw7i- 
mary  proceeding  by  ejectment,  as  under  our  act  of  assembly 
of  1772. 


"  And  thus  lastly,  for  the  sake  of  a  more  beneficial  and  com- 
plete relief  by  decreeing  a  sale  of  lands."     3  Bl.  Com.  439. 

THE  power  of  a  court  of  chancery  reaches  all  cases 
where  a  sale  ought  to  be  made  for  the  purpose  of  fulfilling 
marriage  settlements,  and  raising  portions,  or  paying  lega- 
cies or  debts  charged  on  the  estate ;  and  also  reaches  the 
case  of  executing  agreements  to  convey.  The  heir  or  the 
executor  -with  a  poxver  to  sell^  or  whoever  it  is  that  can  make 
the  title,  will  be  compelled  to  do  it.  With  us,  having  no 
court  of  chancery  to  decree  a  conveyance  on  an  agreement 
to  convey ;  or  in  the  case  of  the  death  of  a  vendor,  to  com- 
pel his  representative  to  make  a  deed,  an  act  of  assembly 
was  passed  31  March,  1792,  "to  enable  executors  and  ad- 
ministrators, by  leave  of  court,  to  convey  lands  and  tene- 
ments contracted  for  with  their  decedents,  and  for  other  piu*- 
poaes  therein  mentioned." 

There  is  no  provision  in  the  act  to  compel  executors  or 
administrators  to  a  specific  performance  of  the  contract  of  the 
decedent ;  but  the  court  is  empowered  to  give  leave  on  appli- 
cation by  petition  in  a  certain  case,  viz.  where  the  heir  is 
under  age  and  the  executors  have  no  authority  by  the  will. 

The  same  power  is  given  by  this  act  to  administrators. 

By  another  act,  2  Ap.  1802,  an  executor  or  administra- 
tor de  bonis  non  is  enabled  to  execute  a  deed  or  deeds,  S;c. 
according  to  the  contract  of  a  decedent  administrator. 

Bv  src.  o,  of  the  same  act,  where  t}\e  administrator  lui^ 


472  Law  Miscellanies. 

sold  lands  by  order  of  the  orphans  court,  and  died  intestate 
without  executing  a  conveyance,  and  no  person  within 
three  months  shall  be  appointed  administrator  de  bonis  non^ 
the  orphans  court,  on  petition  of  the  purchaser,  shall  direct 
the  sheriff  to  execute  the  necessary  conveyance. 

In  England,  administrators  have  nothing  to  do  with  the 
real  estate.  For  the  purpose  of  an  original  %2\.t  of  lands,  here, 
application  must  be  made  to  the  orphans  court ;  and  this  by 
act  of  assembly  with  a  view  to  the  support  of  minors  ;  and 
by  the  usage  of  the  country,  and  the  construction  of  the 
courts  founded  upon  this  usage,  sale  may  be  made  for  the 
purpose  of  defraying  debts. 

By  the  constitution,  art.  5,  sec.  6,  the  legislature  are  en^- 
powered  to  vest  in  the  courts,  such  powers  "  to  grant  relief 
in  equity,  as  shall  be  found  necessary."  This  might  seem 
to  comprehend  the  power  of  decreeing  a  specific  conveyance ; 
but  the  power  of  the  courts  has  not  been  yet  enlarged  to 
such  extent;  and  therefore  in  all  cases  it  must  be  by  actt07i 
on  the  contract  where  the  party  or  his  representative  may 
refuse  to  comply  ;  or  by  action  of  ejectment  where  the  land 
will  be  recovered  under  the  agreement  to  convey. 

In  England  the  king  is  the  general  guardian  of  the  lunatic 
or  non  compos  mentis.  By  our  act  of  assembly  of  the  14th 
April,  1794,  the  contract  of  any  person  for  the  sale  of  lands, 
who  after  making  the  same,  shall  become  lunatic  or  non 
compos  mentis,  it  shall  be  lawful  for  the  purchaser  under 
such  contract,  to  proceed  to  enforce  the  same  against  the  per- 
son to  whom  the  custody  of  the  estate  of  such  lunatic  has 
been  or  shall  be  committed,  in  like  form  and  with  like  effect, 
and  the  person  having  such  custody  shall  have  like  remedy 
to  recover  the  purchase  money  under  such  contract,  as  in 
case  of  contracts  for  the  sale  of  lands. 

By  an  act  of  the  12th  March,  1800,  it  is  declared,  that 
the  authority  given  by  any  last  will  and  testament  to  execu- 
tors to  sell  and  convey  real  estates,  shall  be  and  remain  in 
the  survivors  or  survivor  of  them,  unless  otherwise  expres- 
sed in  the  will. 

By  sec.  3d,  administrators  with  the  will  annexed,  have- 
the  same  authority. 


Law  Miscellanies.  47S 

By  sec.  4,  administrators  de  bonis  no7i  may  execute  the 
power  and  authorities  contained  in  any  last  will  as  fully  as  if 
all  the  executors  had  joined  therein. 

A  supplement  to  the  act  of  1792,  passed  12th  March, 
1804,  provides  that  in  all  cases  the  executor  of  an  executor, 
the  admininistrator  de  bonis  non,  and  so  on  in  succession^ 
shall  have  equal  powers  with  executors  and  administrators 
in  the  first  instance,  by  leave  of  court,  to  convey  lands  con- 
tracted for  with  their  first  decedents,  agreeable  to  the  act  of 
1792. 

It  is  within  the  power  of  the  court  of  chancery  in  Eng- 
land that  the  execution  of  no  trust  shall  fail  from  the  want  of 
a  tjustee  to  execute  the  trust ;  and  therefore  the  court  will 
appoint  a  trustee  wherever  any  thing  is  to  be  carried  into 
effect  which  equity  requires  should  be  done.  These  pow- 
ers of  a  court  of  chancery  therefore  could  only  be  given  by 
act  of  assembly,  and  accordingly  from  time  to  time  has  been 
given  in  the  case  of  representatives,  such  as  executors,  ad- 
ministrators, &c. 

As  Supplying  what  a  court  of  chancery  in  England  might 
have  reached,  it  is  provided  by  an  act  of  28th  March,  1786, 
that  deeds,  conveyances  or  writings,  concerning  lands  and 
tenements  when  lost  or  defaced,  may,  on  bill  or  petition,  be 
supplied  by  the  supreme  courts,  or  any  two  of  the  justices 
thereof. 

By  an  act  passed  19th  Jan.  1793,  the  same  power  is  vest- 
ed in  the  respective  courts  of  rommon  pleas  of  the  proper 
•-ountie?. 


"  An  answer  is  the  most  usual  defence  that  is  made  to  a 
plaintiff's  bill.     It  is  given  upon  oath."— — 

"  In  almost  every  case,  the  plaintiff  may  demand  the  oath  of 
his  adversar}\"     3  Bl.  Com.  446. 

UNDER  the  chancery  power,  all  papers,  books  and  ac- 
counts to  which  the  oath  refers,  maj'  be  called  for,  and  mnsr 

3  O 


474  Law  AIisceIlanies. 

be  produced.  Under  our  constitution,  article  5,  sect.  6, 
the  legislature  have  power  to  vest  in  the  courts,  chancer)' 
powers  to  all  extent,  to  compel  a  party  to  answer  upon  oath, 
as  well  as  to  produce  books  and  papers,  whether  plaintiff  or 
defendant.  They  have  not  yet  gone  so  far  as  to  give  the 
courts  the  power  to  reach  the  conscience,  by  compelling  an 
answer  upon  oathj  but  by  an  act  of  the  27th  Feb.  1798,  it 
is  provided,  "  That  the  supreme  court,  and  several  courts  of 
common  pleas  in  this  state,  shall  hare  power,  in  any  one  ac- 
tion depending  before  them,  on  motion,  and  upon  good  and 
sufficient  cause  shewn,  by  affidavit  or  affirmation,  and  due 
notice  thereof  being  given,  to  require  the  parties  or  either 
of  them,  to  produce  books  or  writings  in  their  possession  or 
power,  which  contain  evidence  pertinent  to  the  issue;  and  if 
cither  party  shall  fail  to  comply  with  such  order,  and  to  pro- 
duce such  books  or  writings,  or  to  satisfy  said  courts  why 
the  same  is  not  in  the  party's  power  so  to  do,  it  shall  be 
lawful  for  the  said  courts,  if  the  party  so  refusing  shall  be  a 
plaintiff,  to  give  judgment  for  the  defendant  as  in  cases  of 
non-suit,  and  if  a  defendant,  to  give  judgment  against, him 
or  her  by  default,  as  far  as  relates  to  such  parts  of  the  plain- 
tiff or  plaintiff's  demand,  or  the  defendant  or  defendant's  de- 
fence, to  which  the  books  or  papers  of  the  parties  are  alleged 
to  apply." 


"  By  the  ancient  common  law,  there  was  a  great  latitude  left 
in  the  breast  of  the  judges,  to  determine  what  Avas  treason,  or  not 
so :  whereby  the  creatures  of  tyrannical  princes  had  opportunity 
lo  create  abundance  of  constructive  treason  ;  that  is,  to  raise,  by 
forced  and  arbitrary  constructions,  offences  into  the  crime  and 
punishment  of  treason,  which  never  were  suspected  to  be  such." 
4  Bl.  Com.  75. 

IN  the  summer  of  the  year  1794,  an  insurrection  in  the 
western  counties  of  Pennsylvania,  took  place,  in  opposition 
to  an  excise  law  of  the  United  States;  and  a  number  of  those 
implicated;  or,  charged  with  being  implicated,  were  arrest- 


Law  Miscellanies.  475 

cd,  and  brought  before  the  federal  court  for  trial  of  ihc  al- 
leged offence.  Being  then  a  practising  lawyer  in  the  western 
countrv,  I  had  an  application  from  some  of  these  persons  to 
defend  them;  in  consequence  of  which  I  had  applied  my 
mind  to  consider,  a  little,  the  Treason  law  of  the  United 
States  ;  and  the  following  is  a  note  of  the  argument  I  had 
intended  to  have  made  on  the  law  points  which  might  arise 
in  their  case.  But  finding  that  my  name  was  attached  to  the 
bills  sent  up  against  them,  I  declined  the  being  of  counsel, 
as  there  %vould  arise  the  necessity  of  the  counsel  for  the  Uni- 
ted States,  aiiimadverting  upon  the  testimony  given.  To  be 
called  as  a  witness  for  the  prosecution,  and  at  the  same  time 
to  manage  the  defence  of  the  accused,  would  seem  to  involve 
some  inconsistency ;  or,  at  least,  it  was  a  situation  not  plea- 
sant, but  to  be  avoided.  The  note  of  this  argument  which 
I  had  prepared,  has  appeared  in  print  before,  but  I  believe 
it  has  been  little  read.  But  at  any  rate  I  have  thought  pro- 
per to  give  it  this  chance  for  preservation,  by  subjoining  it 
in  a  note  at  this  place. ^ 

*C^x  THE  Treason  Laws  of  the  United  States. 

TREASON  by  the  common  laAV  is  indefinite*  :  Restrained 
by  25  Edward  III  f :  enlarged  by  21  Richard  II:  restrained 
again  by  1  Henry  IV.  chapter  10th,  and  brought  back  to  that  of 
25  Edward  III  \ :  enlarged  again  by  sundry  statutes :  it  was 
brought  back  to  that  of  25  Edward  III,  by  1  Edward  VI.  chapter 
12th;  enlarged  again  by  sundry  statutes  § :  it  was  brought  back 
by  1  Mary,  chapter  Istt-  I  have  noted  the  above  to  shew  the 
rigour  of  the  common  law,  and  the  fluctuation  of  the  statute  Ia\v 
of  England,  in  regard  of  the  extent  of  treason. 

*  There  ivas  a  great  latitude  left  in  the  breant  of  the  judges  to 
determine  what  was  treason  or  not.     4  Blackstone^  75. 

t  IThereas  divers  ofiinions  have  been  entertained  before  this 
time,  in  what  case  treason  shall  be  said^ajid  what  not,  the  king,  ac 
the  request,  isfc.     Statutes  at  large,  fi.  1 17. 

:j:  The  preamble  of  the  statute  is,  that,  «  JVhereus  in  the  said 
parliament,  the  said  one  and  twentieth  ijear  of  the  late  king  Rich- 
ard,divers  pains  of  treason  were  ordained  by  statutes,  in  as  much 
that  there  was  no  man  which  did  know  how  he  ought  to  behave  him-^ 
nelf,  to  do,  sfieak,  or  say,  for  doubt  of  such  pains,  it  is  approved 
md  assented  to  by  the  king,  C5'c,     Statutes  at  large,  118. 

§   Statutes,  632. 

•;  Sta'utesat  large,  709, 


470  Law  Mibcellaniks. 

The  fact  is,  the  treason  law  of  England,  was,  by  the  com  • 
mon  law,  to  the  last  degree  sanguinary  ;  and  even  as  it  has 
been  softened  by  statute,  it  still  remains  bloody.  Nothing 
could  be  more  shocking  than  the  condition  of  the  subject  du- 

The  table  of  treason  in  England  at  this  present  day,  is  that  of 
25th  Edward  III.  By  the  treason  law  of  the  United  States,  this 
table  is  reduced  to  a  single  item ;  viz.  "  that  of  levying  war 
against  the  king  in  his  realm,  or  being  adherent  to  the  king's  ene- 
mies in  his  realm,  giving  to  them  aid  or  comfort  in  the  realm 
or  elsewhere." 

The  words  of  our  act  are,  "  if  any  person  or  persons,  owing 
allegiance  to  the  United  States  of  America,  shall  levy  war  against 
them,  or  shall  adhere  to  their  enemies,  giving  them  aid  and  com- 
fort within  the  United  States,  or  elsewhere." 

My  deduction  now  is,  1 .  That  an  immense  softening  has  taken 
place  in  the  law  of  England,  fi'om  what  it  was  by  the  common 
law,  in  I'egard  of  the  extent  of  treason.  2.  That  by  the  treason 
law  of  the  United  States,  it  is  softened  still  more  as  to  the  extent. 

It  will  be  seen,  in  the  second  place,  what  improvement  there 
has  been  of  the  common  law,  in  regard  of  trial.  By  the  common 
law,  no  oyer  of  indictment  was  allowed  before  arraignment;  no 
copy  before  trial ;  no  counsel,  except  on  point  of  law  ;  no  process, 
to  compel  witnesses  for  the  defendant  to  appear ;  not  upon  oath, 
when  they  gave  their  testimony ;  no  limitation  of  the  prosecution. 

By  7th  William  III,  it  is  provided  that  a  copy  of  the  pannel  be 
given  two  days  before  trial. 

Compulsory  process  for  witnesses. 

Limitation  of  prosecution  to  three  years,  contrary  to  the  maxim 
of  the  common  law,  JVullum  iemjius  occurit  Regi. 

By  the  common  law  of  the  United  States  the  prosecution  is 
limited  to  three  years.  "  A  copy  of  the  indictment,  and  a  list  of 
the  jury,  and  witnesses  to  be  produced  on  the  trial  for  proving  the 
said  indictment,  mentioning  the  names  and  places  of  abode  of  such 
witnesses  and  jurors,  is  to  be  delivered  to  the  accused  at  least 
three  entire  days  before  he  shall  be  tried  for  the  same."  He  is  al- 
lowed counsel  to  be  employed  by  hinisclf,  or  if  not  able  himself  to 
employ,  counsel  to  be  assigned  by  the  court ;  he  is  entitled  to  com- 
pulsory process  to  procure  the  attendance  of  witnesses  on  his  bc- 
lialf;  and  those  witnesses  are  heard  upon  oath. 

Thus  the  treason  law  of  the  United  States,  improves  in  some 
particulars,  even  the  amelioration  statute  of  William  III. 


Law  Miscellanies.  4;'i 

ring  the  civil  wars,  in  the  contest  for  the  crown,  by  the 
houses  of  Lancaster  and  York.  The  king  de  jure,  and  the 
king  de  facto  provision  softened  it  a  little ;  but  nevertheless 
the  kingdom,  for  several  ages,  was  but  a  Golgotha,  or  place 

Let  us  see,  in  the  third  place,  what  has  been  the  change  in  tho 
nature  of  the  proof  necessary  to  fix  the  crime  of  treason. 

By  the  common  law  one  witness  was  sufficient.  By  1  Edward 
VI.  chapter  12,  two  witnesses  are  made  necessary.*  1  and  6li; 
Edward  Vf .  chapter  3d  :  it  is  made  necessary  that  the  witnesses 
be  brought  face  to  face  with  the  accused. f 

By  13  Charles  II,  "  Two  lawful  and  credible  M'itnesses,  upon, 
oath,  upon  trial,"  are  made  requisite. 

While  such  was  the  process  of  legislative  improvement  in 
regard  of  proof  in  case  of  treason,  did  the  judges  keep  an  equal 
pace  in  favour  of  humanity  in  the  construction  of  those  statutes  ? 
No ;  their  leaning  constantly  was  against  the  accused ;  for  neai* 
a  century,!  the  statute  of  1  Edward  VI.  was  litlic  regarded,  or  it 
was  rendered  nugatory,  by  the  extraordinary  resolution,  "  that 
one  witness  of  his  own  knowledge,  and  another  by  hear-say,  yro;;z 
/ilm,  though  at  third  or  fourth  hand,  made  two  witnesses  or  accu- 
sers within  the  act."  Even  in  cases  where  the  accused  insisted 
strongly  on  the  benefit  of  this  act,  the  counsel  for  the  crown  has 
gone  on  in  the  method  formerly  practised,  reading  examinations 
and  confessions  of  persons  supposed  to  bs  accomplices;  som;^ 
living  and  amenable,  others  lately  hanged  for  the  same  trcasoii. 

In  succeeding  trials,  the  prisoners  have  been  told  that  the 
statutes  of  Edward  VI,  were  repealed,  particularly  that  v/Wich 
regards  two  witnesses  face  to  face  ;  '•  that  this  laAV  had  been 
found  dangerous  to  the  croAvn." 

When  the  people  of  all  ranlcs  and  parties  in  England  had  been 
learning  moderation  in  the  school  of  adversity,  light  began  to  dawn 
upon  theiu.  The  judges  were  at  length  brought  to  attend  to  the 
statute  of  Edward  VI ;    but  gave  it  a  construction  unfavourable 

*  "  B(j  accused  by  tioo  &uffi.cienf.  and  lawful  witiiesses,  or  shall 
•Willin^-ly  and  ivUhout  violence  confess  the  same.'*     Stat.  686. 

t  "  Be  accused  by  twi  lawful  accusers  ;  which  said  accusers^ 
at  the  time  of  that  arraignment  of  the  fiarty  accused.,  if  they  be 
then  living.)  shall  be  brovght  in  jierson  before  the  party  accused, 
and  avow  and  maintain  that  they  have  to  say  against  the  said  par- 
ty., to  firove  him  guilty  of  the  treason  or  offences  contained  in  the 
bill  of  indictments^'     Stat.  686. 

1    17  Foster.,  332. 


J 


478  Law  Miscellanuls. 

of  sculls,  from  the  executions  that  took  place.  The  accursed 
principle  of  the  ne  exitere  patriam^  followed  even  those  that 
attempted  an  escape  from  the  kingdom :  a  principle  against 
V.'hich  never  enough  can  be  said ;  but  which,  it  is  to  be  hopedj 

to  ihc  accused:  viz..  "  that  admitting  two  witnesses  to  be  necessa- 
ry, yet  one  witness  to  one  overt  act,  and  another  to  another  overt 
act,  of  tlie  same  s|>ecies  of  treason,  are  two  sufficient  witnesses 
Avithin  l)ic  act."  The  judges  drew  the  legislature  after  them  in 
lliis  illiberal  construction  of  the  statute,  and  by  7  William  II,  it  is 
sanctioned  by  the  clause,  "  on  the  oath  or  testimony  of  two  lawful 
witnesses,  either  both  of  them  to  the  same  overt  act,  or  one  of 
them  to  one,  and  the  other  of  them  to  another  overt  act  of  the 
same  treason."  But  at  the  same  time,  the  illiberal  constructions 
of  the  judges  arc  rectified  and  restrained  in  another  very  mate- 
rial particular ;  it  is  provided  by  section  4th,  that  where  "  two  or 
more  distinct  treasons  of  divers  heads,  or  kinds,  be  alleged  in  one 
bill  of  indictment,  one  witness  produced  to  prove  one  of  the  said 
treasons,  and  another  witness  pi-oduccd  to  prove  another  of  the  said 
treasons,  shall  not  be  deemed  or  taken  to  be  two  witnesses  to  the 
same  treason. 

Another  error  in  the  decision  of  the  judges  is  corrected,  oral 
least  the  construction  given  by  them,  is  ameliorated  by  7  William, 
chapter  3d,  section  8th,  by  which  it  is  provided,  "  that  no  evidence 
shall  be  admitted  or  given  of  any  overt  act,  not  expressly  laid  in 
the  indictm.ent." 

By  the  treason  law  of  the  United  States,  a  great  improvement 
has  been  gained  on  the  statute  of  7  William.  The  proof  demand- 
ed by  our  law  is,  "  the  testimony  of  two  witnesses  to  the  same  overt 
act  of  treason,  whereof  indicted."  And  by  our  act,  the  construc- 
tion given  by  the  judges,  at  some  period  in  England,  to  the  clause 
of  the  statute  of  1st  Edward  VI,  is  rectified.  The  "  willingly  and 
without  violence  confessing  the  same,"  had  been  construed  to  be 
a  confession  out  of  covn-t,  made  however  casually  ;  this  is  fixed  to 
a  confession  "  in  an  open  court." 

It  will  be  seen  that  the  decision  of  the  English  judges  have  op- 
posed the  improving  mind  of  the  legislature  ;  they  have  reduced 
it  from  time  to  lime,  contrary  to  the  natural  and  humane  meaning, 
by  subtile  and  unreasonable  construction.  But  in  ascertaining 
the  necessary  proof  of  treason,  the  law  of  Congress  has  corrected 
..11  this,  and  fixed  it  on  the  basis  of  reason  and  humanity. 

The  only  q\iestion  now  to  be  considered,  or  at  least  the  only 


Law  Miscellanies.  479 

■will  receive  a  death-blow,  by  the  resistance  made  to  it  at  the 
present  time.  It  is  astonishing  how  it  came  into  the  mind 
of  an  enlightened  Englishman,  such  as  Blackstone,  to  justify 

it,  and  to  call  it  a  principle  of  universal  laxv,   as  he  would 

« 

question  which  I  shall  consider,  is,  What  shall  be  said  to  be  a 
"  levying  war?"  I  shall  state  first  what  by  the  decision  of  the 
judges  of  England,  has  been  construed  to  be  a  levying  war. 

It  would  strike  the  common  mind,  that  the  taking  arms  to  de- 
throne the  king,  or  to  change  the  government,  could  alone  amount 
to  a  levying  war :  that  there  must  be  not  only  an  assembling  in 
arms,  but  an  animus  subvertendi,  or  intention  of  overthrowing  in 
the  case.  But  it  has  been  carried  much  further  by  the  judges. 
To  explaui  this,  I  cannot  6erve  the  public  better,  than  by  transcrib- 
ing a  chapter  from  the  most  sensible  writer  on  this  subject ;  that  is 
judge  Foster.  It  is  chapter  2d,  of  discourse  1st,  of  high  treason, 
on  the  clause  of  levying  war,  and  adhering  to  the  king's  enemies. 

"  Lord  chief  justice  Hale  speaking  of  such  unlawful  assemblies 
as  may  amount  to  a  levying  of  war  within  the  25  E.  3,  taketh  a 
difference  between  those  insurrections  which  have  caiTied  the 
appearance  of  an  army  formed  under  leaders,  and  provided  with 
military  weapons,  and  with  drums,  colours,  Sec.  and  those  other 
disorderly,  tumultuous  assemblies,  which  have  been  drawn  toge- 
ther and  conducted  to  purposes  manifestly  unlawful,  but  with- 
out any  of  the  shew  and  apparatus  of  -war  before  mentioned. 

"  I  do  not  think  any  great  stress  can  be  laid  on  that  distinction. 
It  is  true,  that  in  case  of  levying  war,  the  indictments  genci'ally 
charge  that  the  defendants  were  armed  and  arrayed  in  a  warlike 
manner ;  and  where  the  case  would  admit  of  it,  the  other  circum- 
stances of  swords,  guns,  drums,  colours,  See.  have  been  added. 
But  I  think  the  merits  of  the  case  have  ncVcr  turned  singly  on 
any  of  those  circumstances. 

"  In  the  cases  of  Daniarcc  v.  Purchase,  which  are  the  last/;r/;f/- 
ed  cases  that  have  come  in  judgmtjut  on  the  point  of  constructive 
levying  war,  there  was  nothing  jf/ven  i7i  i-vidnice  of  the  usual  pa- 
geantry of  war,  no  military  weapons,  no  banners  or  drums,  nor 
any  regular  consultation  previous  to  the  rising.  And  yet  the  want 
of  these  circumstances  weighed  nothing  with  the  court,  though 
the  prisoner's  counsel  insisted  much  on  that  matter.  The  number 
of  the  insurgents  supplied  the  want  of  military  weapons;  and  they 
were  provided  with  axes,  crows,  and  other  tools  of  the  like  nature, 
nropcr  for  the  mischief  they  intended  to  (.fleet. 


480  Law  Miscellanies. 

seem  to  have  done  in  these  Commentaries ;  though  at  the 
same  time  under  the  head  of  parental  subjection,  he  admits 
that  it  has  its  limits.  "  To  those,"  says  he,  "  who  gave  us 
existence,  we  naturally  owe  subjection  and  obedience  ^/i/ring* 

•Furor  arma  minifitrat. 

"  Sect.  1.  The  true  criterion  therefore  in  all  these  cases  is  Qtio 
aniino  did  the  parties  assemble.  For  if  the  assembly  be  upon  ac- 
count of  some  private  quarrel,  or  to  take  revenge  on  fiarticular 
persons,  the  statute  of  treasons  hath  already  determined  that  point 
in  favour  of  the  subject.  "If,  saiththe  statute,  any  man  ride  ofien^ 
"  ly  [so  the  word  dencouuert  ought  to  have  been  rendered]]  or  se- 
"  cretly  with  men  of  arms  against  any  other  to  slay  or  rob  him,  or 
"  to  take  and  keep  him  'till  he  make  fine  for  his  deliverance,  it  is 
"  not  the  mind  of  the  king  nor  his  council  that  in  such  case  it  shall 
"  be  adjudged  treason  ;  but  it  shall  be  adjudged  felony  or  trespass 
"  according  to  the  laws  of  the  land  of  old  times  used.,  and  accord- 
"  ing  as  the  case  requireth."  Then  immediately  followeth  ano- 
ther clause  which  reacheth  to  the  end  of  the  statute;  and  provid- 
eth  that,  if  in  such  case  or  other  like  the  offence  had  theretofore 
been  adjudged  treason,  whereby  the  lands  of  the  offenders  had 
come  to  the  crown  as  forfeit ;  the  lords  of  the  fee  should  notwith- 
standing have  the  escheat  of  such  lands,  saving  to  the  crown  the 
year,  and  waste. 

"  I  will  make  a  short  observation  or  two  on  those  clauses. 

*'  1  st,  The  first  clause  is  evidently  declaratory  of  the  common 
law,  it  shall  be  adjudged  felony  or  trespass  according  to  the  lanv  c^f 
the  land  of  old  time  used.  The  second  hath  a  retrospect  to  some 
late  jvidgments,  in  which  the  common  law  had  not  taken  place ; 
and  giveth  a  speedy  and  effectual  remedy  to  lords  of  the  fee  who 
had  suffered  by  those  judgments. 

"  2dly,  The  words  of  the  first  clause  descriptive  of  the  offence, 
"  if  any  man  ride  armed  openly  or  secretly  with  men  of  arms," 
did  in  the  language  of  these  times,  mean  nothing  less  than  the 
asscmbling  bodies  of  men,  friends,  tenants,  or  dependents,  armed 
and  arrayed  in  a  wai'like  manner,  in  order  to  effect  some  purpose 
or  other  by  dint  of  numbers  and  superior  strength.  And  yet  those 
assemblies  so  formed  and  arrayed,  if  drawn  together  for  purposes 
of  a  private  nature,  were  not  deemed  treasonable. 

"  Sdly,  Though  the  statute  mentioneth  only  the  cases  of  asseni 
bling  to  kill,  rob,  or  iwpi'.son,  yet  thcfic,  put  as  they  are  by  way 


Law   MiSCELLAKlES.  481 

our  tmnority"  1  Bl.  Com.  453.  Rutherforth,  and  every 
other  English  writer,  to  parental  subjectien  assigns  the  same 
limit.  On  principle  of  natural  reason,  the  contrary  suppo- 
sition, would  enslave  descendants  ad  infinitum. 

Adam  came  from  his  Creator,  a  perfect  man*  To  the  Al- 

of  example  only,  will  not  exclude  others  which  may  be  brought 
within  the  same  rule.  For  the  retrospective  clause  provideth, 
that  "  if  in  such  case  or  other  like  it  hath  been  adjudged" — what 
are  the  other  like  cases  ?  all  cases  of  the  like  private  nature  are,  I 
apprehend,  within  the  reason  and  equity  of  the  act.  The  cases  cit- 
ed by  Hale,  some  before  the  statute  of  treasons,  and  others  after 
it,  those  assemblies  though  attended  many  of  them  with  bloodshed 
and  with  the  ordinary  apparatus  of  war,  were  not  held,  to  be  trea- 
sonable assemblies.  For  they  were  not  in  construction  of  laAV, 
raised  against  the  king  or  his  royal  majesty,  but  for  purposes  of  ii- 
private  personal  nature. 

"  Sec.  2.  Upon  the  same  principle  and  within  the  reason  and  e- 
quity  of  the  statute,  risings  to  maintain  z.firivate  claim  of  right,  or  to 
destroy  fiarticular  inclosures,  or  to  remove  nuisances  which  affect- 
ed or  were  thought  to  affect  in  point  q/"  interest  the  parties  assem- 
bled for  these  fiur/ioses,  or  to  break  prisons  in  order  to  release  par- 
ticular persons  without  any  other  circumstance  of  aggravation,  have 
not  been  held  to  amount  to  levying  war  within  the  statute. 

"  And  upon  the  same  principle  and  within  the  same  equity  of 
the  statute,  I  think  it  was  very  rightly  held  by  five  of  the  judges, 
that  a  rising  of  the  weavers  in  and  about  London  to  destroy  all  en- 
gine looms,  a  machine  which  enabled  those  of  the  trade  who  made 
use  of  it  to  undersell  those  who  had  it  not,  did  not  amount  to  levy- 
ing war  within  the  statute  ;  though  great  outrages  were  coUimit- 
ted  on  that  occasion  not  only  in  London  but  in  the  adjacent  coun- 
ties, and  the  magistrates  and  peace  officers  were  resisted  and  af- 
fronted. 

"For  those  judges  considered  the  whole  affair  merely  as  a  firi- 
vate  quarrel  betivevn  men  of  the  same  trade  about  the  use  of  a  par- 
ticular engine^  nvhich  those  concerned  in  the  risinff^  thought  detri- 
mental to  thc?n.  Five  of  the  judges  indeed  were  of  a  differerit  opi- 
nion. But  the  attoiT.ey  general  thought  proper  to  proceed  agahist 
the  defendants  as  for  a  riot  only. 

"  Sec.  3.  But  every  insurrection  which  in  judgment  of  law  i? 
i.ntepded  against  rlie  person  yf  the  king,  be  it  to  dethrone  or  im- 

.3  P 


4t^^  Law  Miscellanies. 

mighty  he  owed  his  bringing  up  to  manhoocl,  and  placing  him 
where  he  was.  We  may  suppose  the  first  man  bound,  in  like 
manner,  to  take  care  of  his  offspring,  until  brought  to  the 
same  period ;  and  in  so  doing,  it  was  but  the  discharge  of  an 

prison  him,  or  to  oblige  him  to  alter  his  measures  of  government. 
ov  to  remove  evil  counsellors  from  about  him,  these  risings  all 
amount  to  levying  war  within  the  statute  ;  whether  attended  with 
the  pomp  and  circumstances  of  open  war  or  not.  And  every  con- 
spiracy to  levy  war  for  these  purposes,  though  not  treason  withii> 
the  clause  of  levying  war,  is  yet  an  overt  act  within  the  other 
clause  of  compassing  the  king's  death.  For  these  purposes  can- 
not be  effected  by  numbers  and  open  force,  without  manifest  dan- 
ger to  his  person. 

"  Sec.  4.  Insurrections  in  order  to  throw  down  all  inclosures, 
to  alter  the  established  law  or  change  religion,  to  enhance  the 
price  of  all  labour,  or  to  open  all  prisons,  all  risings  in  oi'der  to 
effect  these  innovations  of  a  public  and  general  co-nc€rn  by  an  arm.' 
edforcCf  are  in  construction  of  law  high  treason,  within  the  clause 
of  levying  war.  For  though  they  are  not  levelled  at  the  person 
*  of  the  king,  they  are  against /««  royal  majesty.  And  besides,  they 
have  a  direct  tendency  to  dissolve  all  the  bonds  of  society,  and  to 
destroy  all  property  and  all  government  too,  by  numbers  and  an 
armed  force.  Insurrections  likewise  for  redrcssuig  natio?ial  griev- 
ances, or  for  the  expulsion  of  foreigners  in  general,  or  indeed  of 
any  single  nation  living  here  under  the  protection  of  the  king,  or 
for  the  reformation  of  real  or  imaginary  evils  of  a  fiuldic  nature^ 
and  in  luhirh  the  insurgen/s  have  no  special  interest,  risings  to  ef- 
fect these  ends  by  force  and  numbers,  are  by  construction  of  law 
within  the  clause  of  levying  war.  For  they  are  levelled  at  the 
king's  crown  and  royal  dignity. 

"  Sec.  5.  It  was  adjudged  in  the  16th  Car.  1.  a  season  of  great 
agitation,  that  going  to  Laml)eth  house  in  a  warlike  manner  to 
surprise  the  archbishop,  who  was  a  privy  counsellor,  it  being  with 
drinns  and  a  multitude  to  the  number  of  300,  was  treason. 

"  This  is  a  very  imperfect  account  of  an  insuiTection,  which  hath 
found  a  place  in  the  best  histories  of  that  time.  The  tumult  hap- 
pened on  Monday  the  11th  of  May,  1640,  about  midnight.  On 
Thursday  following  the  special  commission  under  which  the  judg- 
es sat  was  opened  and  proceeded  upon ;  and  Benstead  a  ringlea<l- 
er  in  the  tumult  wcis  convicted,  and  \tithin  a  very  few  days  after-- 
,   Wards  cxecutccV- 


Law  Miscellanies.  483 

obligation.  It  did  not  entitle  hiiii  to  the  perpetual  service  of 
Ac  descendant ;  or  to  authority  and  command  over  him.  If 
the  jus  parentis,  or  patria  potestas,  must  then  have  a  limit, 
hoAV  can  the  right  of  a  society  attach,  on  his  coming  to  be  of 

<'  It  is  not  very  easy  from  the  short  note  of  the  ease  given  by  the 
reporters,  to  collect  the  true  grounds  of  this  resolution.  But  the 
histoiy  of  the  times  will  enable  us  to  form  a  probable  conjecture 
concerning  them. 

"  On  the  5th  of  May  the  parliament  was  dissolved  to  the  general 
dissatisfaction  of  the  nation.  And,  which  greatly  increased  the  ill 
humour  of  the  people,  the  convocation  was  by  a  new  commission 
impov/ered  to  continue  sitting,  notwithstanding  the  dissolution  of 
the  parliament.  And  the  blame  and  odium  cf  both  these  unfiopM- 
lar  measures  were  laid  upon  the  archbishop. 

''  On  Saturday  the  9th  of  that  month,  a  paper  vvas  posted  up  at 
ihe  Exchange,  exhorting  the  apprentices  to  rise  and  sack  the  arch- 
bishop's house  on  the  Monday  following.  And  accordingly  on 
that  very  day  an  attempt  was  made  upon  Lambeth  house  by  a 
jabblc  of  some  thousands  ;  v/ith  open  profession  and  protestation, 
tliat  they  would  tear  the  archbishop  in  pieces-. 

"  It  were  to  be  wished  that  the  full  import  of  the  libel  posted  at 
$lie  Exchange,  in  consequence  of  whicli  the  attempt  was  made, 
had  been  set  out :  and  also  that  we  Avere  informed  what  Avas  the 
ery  among  the  rabble  at  the  time  of  the  attemjit,  more  than  that 
they  would  tear  the  archbishop  in  pieces.  These  circumstances, 
could  we  come  at  them,  would  probably  let  us  into  the  true  rea- 
r,on  and  motives  for  the  rising,  and  consequently  into  the  reason 
and  grounds  of  the  opinion  of  the  judges.  For  if  it  did  appear  by 
the  libel,  or  by  the  cry  of  the  rabble  at  Lambeth  house,  thaj  the'at- 
tempt  was  made  on  account  gf  measures  the  king  had  taken,  or  was 
then  taking  at  the  instigatiori  as  they  imagined  of  the  archbishop  ; 
that  tlie  rabble  had  deliberately  and  upon  a  public  invitation  at- 
tempted by  numbers  and  open  force.y  to  take  a  severe  revenge  up- 
an  the  privy 'Counsellor,  for  the  measures  the  sovereign  had  taken 
v,r  was  pursuing  ;  if  this  may  be  supposed  to  be  the  case,  I  think 
ilic  supposition  is  not  very  foreign,  the  grounds  and  reasons  of 
the  resolution  would  in  my  opinion  be  sufficiently  explained,  witln 
out  taking  that  little  trifling  circumstance  of  the  drum  into  the 
case.  Upon  such  a  supposition,  the  case  came  within  the  treason 
of^Talbot's  case,  17  R.  2,  cited  by  Hale.  And  I  thhik  too  within 
•he  T-ulcs  laid  dovrn  in  the  two  pro-ceding  sections.     But  A\ithout 


^a^i  Law  Miscellanies. 

an  age  to  provide  for  himself,  so  as  to  preclude  him  from 
chusing  another  soil,  or  electing  a  different  society  with 
whom  to  find  his  happiness  ? 

I  have  been  led  to  these  reflections  when  I  have  thought 

the  help  of  some  such  supposition,  I  see  nothing  in  the  case  as  sta- 
ted by  the  repoi-t,  which  can  amount  to  high  treason. 

"  Sec.  6.  But  a  bare  conspiracy  for  effecting  arising,  for  the 
purpose  mentioned  in  the  two  preceding  sections  and  in  the  next, 
is  not  an  overt  act  of  compassing  the  king's  death.  Nor  will  it 
come  under  any  species  of  treason  within  the  25  Edward  3.  unless 
the  rining  be  effected.  And  in  this  case  the  conspirators  as  well 
as  the  actors  Avill  be  all  equally  guilty.  For  in  high  treason  of  all 
kmds,  all  the  fiartici/ies  criminis  are  principals. 

"  It  must  be  admitted,  that  conspiracies  for  these  purposes  have 
been  adjudged  treason.  But  those  judgments  were  founded  on 
the  temporary  act  of  13  Eliz.  which  made  compassing  to  levy  war, 
declared  by  printing,  writing,  or  advised  speaking,  high  treason 
dunnt^  the  life  of  the  queen. 

"  There  was  an  act  in  the  13  Car.  2.  to  the  same  purpose  on 
wluch  some  prosecutions  were  founded ;  but  that  act  expired  with 
tlje  death  of  the  king. 

"  Sec.  7.  The  cases  of  Damaree  and- Purchase  for  destroying, 
the  meeting  houses  of  Protestant  dissenters,  being  the  last  xvitirint 
that  have  come  in  judgment  upon  the  doctrine  of  constructive 
levying  war ;  and  having  been  ruled  upon  consideration  of  former 
precedent,  I  will  state  them  somewhat  largely  from  the  printed 
trials. 

"  The  indictments  charged  that  the  prisoners  withdrawing  their 
allegiance,  Sec.  and  conspiring  and  intending  to  disturb  the  peace 
and  public  tranquillity  of  the  kingdom,  did  traitorously  compass, 
imagine,  and  intend  to  levy  and  raise  war,  rebellion,  and  insur- 
rection against  the  queen  v/ithin  the  kingdom  ;  and  that  in  order 
to  complete  and  effect  those  their  traiterous  intentions  and  imagi- 
nations, they  on  the  day  of  at  with  a  multitude 
gf  people  to  the  number  of  500  armed  and  arrayed  in  a  warlike 
manner,  &c.  tlacn  and  there  traitorously  assembled,  did  traitor- 
ously ordain,  prepare,  and  levy  war  against  the  queen,  against  the 
duty  of  their  allegiance,  &c. 

•'  It  appeared  upon  the  trial  of  these  raen,  which  I  attended  in. 
llie  students  gallery  at  the  Old  Bailey,  that  upon  the  1st  Marcli 
r7Q9.  durine  Dv.  Jjacheverell'?  "••■•.V  :'-f  r?.'.)])!'"  ^'.'bo  had  pit'TK^^-i' 


Law  !^iscellanie*s.  485 

of  the  application  of  the  law  of  treason,  to  those  who  in  civil 
dissensions  have  endeavoured  to  withdraw  themselves  from 
the  scene  of  tumult  and  of  jeopardy. 

But  it  will  be  said,  let  people  expatriate,  provided  it  is 

the  doctor  from  Westminster  to  his  lodgings  in  the  temple,  conti- 
nued together  a  short  space  in  the  King's  Bench  walks,  crying 
among  other  cries  of  the  day,  donvn  ivith  the  Presbyterians. 

"  At  length  it  was  proposed,  by  whom  it  was  not  known,  to  pull 
down  the  meeting  houses,  and  thereupon  the  cry  became  general, 
down  ivith  the  meeting  houses  :  and  some  thousands  immediately 
moved  toward  a  meeting  house  of  ISIr.  Bvu'gcs,  a  protestant  dis- 
senting minister ;  the  defendant  Damaree,  a  waterman  in  the 
queen's  service,  and  in  her  livery  and  badge,  putting  himself  at 
the  head  of  them,  and  crying,  come  on  boyny  Vll  lead  you,  down 
with  the  meeting  houses.  They  soon  demolished  Mr.  Burges's, 
and  burnt  the  pews,  pulpit,  and  other  materials  in  Lincoln's  Inn 
Fields,  After  they  had  finished  at  that  place,  they  agreed  to  pro-, 
ceed  to  the  rest  of  the  meeting  houses.  And  hearing  tliat  the 
guards  were  coming  to  disperse  them,  they  agreed  for  the  greater 
dispatch  to  divide  into  several  bodies.)  arid  to  attack  different  houses 
at  the  same  time.  And  many  were  that  night  in  part  demolished, 
and  the  materials  burnt  in  the  street. 

"  The  prisoner  Damaree  put  himself  at  the  head  of  a  party  Which 
drew  ofi'  from  Lincoln's  Inn  Fields  and  demolished  a  meethig 
house  in  Drury-Lane,  and  burnt  the  materials  in  the  street ;  still 
crying  they  would  pull  them  all  down  that  night. 

"  While  the  materials  of  this  house  were  burning,  the  prisoner 
Purchase  who  had  not,  for  aught  appeared,  been  before  concerned 
in  the  outrages  of  that  night,  came  up  to  the  fire  very  drunk  ;  and 
with  his  drav/n  sword  in  his  hand,  encouraged  the  rabble  in  what 
they  were  doing.  And  incited  them  to  resist  the  guards  who  were 
just  then  come  to  the  fire  in  order  to  disperse  the  multitude.  lie 
likewise  asaulted  the  commanding  oflicer  with  his  drawn  sword, 
and  struck  several  of  their  horses  with  the  same  weapon.  Aivl 
then  advancing  towards  the  guards,  cried  out  to  the  rabble  behind 
him,  come  on  boys,  Vll  I'jsc  my  life  in  the  cause,  I  will  Jight  the 
best  of  them. 

"  Upon  the  trial  of  Damaree,  the  cases  referred  to  before  in 
sect.  4.  and  5.  were  cited  at  the  bar,  and  all  the  judges  present 
were  of  opinion  that  the  prisoner  was  guilty  of  the  high  treason 
charged  upon  hiijfi  in  the  hidictmcnt.    For  here  was  a  rising  with 


486  Law  MiscELiAjitEs. 

not  during  war,  for  I  admit  this  restriction,  but  let  them  not 
take  arms  against  the  parent  country.  But,  if  the  right  to 
join  another  society,  and  become  a  member,  is  allowable,  the 
duties  to  that  society  instantly  arise,  and  it  will  have  aright, 

an  avowed  intention  to  demolish  all  meeting  hoi^ses  in  general ; 
and  this  intent  they  carried  into  execution  as  far  as  they  were  able. 
If  the  meeting  houses  of  protestant  dissenters  had  been  erected 
and  supported  in  defiance  of  all  law,  a  rising  in  order  to  destroy 
such  houses  ifi  general^  would  have  fallen  under  the  rule  laid 
tlown  in  Keling,  with  regard  to  demolislaing  all  bawdy  houses. 
But  since  the  meeting  houses  of  protestant  dissenters  are  by  the 
l.oleration  act  taken  under  the  protection  of  the  law,  the  insurrec- 
tion in  the  present  case  was  to  be  considei-ed  as  a  public  declara- 
tion by  the  rabble  against  that  act,  and  an  attempt  to  render  it  in- 
effectual by  numbers  and  ojien  force. 

"  Accordingly  Damaree  was  found  guilty,  and  had  judgment 
qf  death  as  in  cases  of  high  treason. 

"  But  he  was  pardoned  and  soon  after  restored  to  his  badge  and 
livery,  which  he  wore  to  the  death  of  the  queen.  Her  majesty's 
new  advisers  did  not  choose  to  have  the  dawn  of  their  adminis- 
tration stained  with  the  blood  of  one  of  Dr.  Sacheverell's  ablest  ad» 
vocates. 

"  With  regard  to  the  case  of  Purchase,  there  was  some  diver- 
sity of  opinion  among  the  judges  pi'esent  at  his  trial :  because  it 
did  not  appear  upon  the  evidence,  that  he  had  any  concern  in  the 
original  rising,  or  was  present  at  the  pulling  down  any  of  the 
houses,  or  any  ways  active  in  the  outrages  of  that  night ;  except 
his  behaviour  at  the  bonfire  in  Drury  Lane,  whither  he  came  by 
mere  accident,  for  aught  appeared  to  the  contrary. 

"  The  jury  therefore,  by  the  direction  of  the  court,  found  a 
.special  verdict  to  the  effect  already  mentioned. 

"  Upon  this  special  verdict,  which  in  substance  took  in  the  whole 
transaction  on  the  first  of  March,  the  judges  unanimously  resolv- 
ed, that  for  the  reasons  mentioned  at  Damaree's  trial,  he  and  the 
others  concerned  with  him  in  the  demolishing  and  rifting  the 
meeting  houses,  were  guilty  of  high  treason  in  levying  war  against, 
the  queen. 

"  As  to  the  case  of  Purchase,  chief  J.  Trevor,  justice  Powel, 
iind  baron  Price  were  of  opinion,  that  upon  the  facts  found,  he  was 
not  guilty  of  the  charge  in  the  indictment.  But  all  the  rest  of  the 
judges  differed  fromthcni.     Because  the  rabble  was  traitorouslv 


Law  Miscellanies.  4Z7 

to  call  upon,  and  compel  the  individual  emigrant,  to  take 
arms,  if  the  sovereign  authority  of  that  society  should  com- 
mand it.  Here  then  will  be  a  dilemma ;  and  the  right  of 
changing  country,  must  fall ;  or  the  right  of  taking  defence 

assembled,  and  in  the  very  act  of  levying  war  when  Purchase  join- 
ed them,  and  encouraged  them  to  proceed,  and  assauUed  the 
guards,  who  were  sent  to  suppress  them.  All  this  being  done  in 
defence  and  support  of  persons  engaged  in  the  very  act  of  rebellion^ 
involved  him  in  the  guilt  of  that  treason  in  which  the  others  were 
engaged. 

"  This  man  likewise  was  pardoned.  His  case  in  point  of  law 
and  of  real  guilt  too,  came  far  short  of  Damaree's. 

"  Sec.  8.  The  joining  with  rebels  in  an  act  of  rebellion,  or  with 
enemies  in  act's  of  hostility,  will  make  a  man  a  traitor :  in  the  one 
case  within  the  clause  of  levying  war,  in  the  other  within  that  of  ad- 
hermg  to  the  king's  enemies.  But  if  this  be  done  for  fear  of  death, 
and  while  the  party  is  under  actual  force,  and  he  take  the  first  op- 
portunity that  ofFereth  to  make  his  escape,  this  fear  and  compul- 
sion will  excuse  him.  It  is  however  incwimbenton  the  party  who 
maketh  fear  and  compulsion  his  defence,  to  shew  to  the  satisfac- 
tion of  court  and  jury  that  the  compulsion  continued  during  all  the 
time  he  staid  with  the  rebels  or  enemies. 

"  I  will  not  say  that  he  is  obliged  to  account  for  every  day,  week, 
or  month.  That  perhaps  would  be  imposssible.  And  therefore  if 
an  original  force  be  proved,  and  the  prisoner  can  shew,  that  he  In 
earnest  attempted  to  escape  and  was  prcver|ted ;  or  that  he  did  get 
off  and  was  forced  back,  or  that  he  was  narrowly  watched,  and  all 
passes  guarded  ;  or  from  other  circumstances,  which  it  is  impossi- 
ble to  state  with  precision,  but  when  proved  ought  to  weigh  with  a 
jury,  that  an  attempt  to  escape  would  have  been  attended  with  great 
difficulty  and  danger  ;  so  that  upon  the  ivhole  he  may  be  /iresumed 
to  have  continued  amongst  t hern  against  hie  nvill^  though  not  con-, 
stantly  under  an  actual  force  or  fear  of  immediate  death,  these 
circumstances  and  others  of  the  like  tendency  proved  to  the  satis- 
faction of  the  court  and  jury,  vvill  be  sufficient  to  excuse  him. 

"  But  an  apprehension  thovigh  ever  so  well  grounded,  of  havyig 
houses  burnt  or  estates  wasted  or  cattle  destroyed,  or  of  any'othc^- 
mischief  of  the  like  kind,  will  not  excuse  in  the  case  of  joining  "and 
marching  -with  rebels  or  enemies. 

"  Funiishing  rebels  or  enemies  with  money,  arms,  ammunition, 
orcftljer  necessaries  will /•/'/^nr/  facie,  make  a  man  a  tiaitor;     Buf 


488  Law  MiscELLANitg. 

with  a  new  society  must  exist.  Both  cannot  stand  together. 
It  would  be  abominable,  therefore,  under  our  notions  of  the 
rights  of  men,  to  consider  him  as  guilty  of  treason  who  had 
manifested  his  intention  of  changing  one  country  for  another, 
and  who  had  carried  that  into  effect. 

if  enemies  or  rebels  come  with  a  superior  force  and  exact  contri- 
butions, or  live  upon  the  country  at  free  quarter,  submission  in  these 
cases  is  not  ci*iminal.  For  Jlagrante  bello  the  jus  belli  taketh  place, 
'tis  the  only  laAv  then  subsisting.  And  submission  is  a  point  of  the' 
highest  prudence  to  prevent  a  greater  public  evil. 

"  And  the  bare  sending  money  or  provisions  (except  in  the  case 
just  excepted)  or  sending  intelligence  to  rebels  or  enemies,  which 
in  most  cases  is  the  most  effectual  aid  that  can  be  given  them,  will 
make  a  man  a  traitor,  though  the  money  or  mtelligence  should  hap- 
pen to  be  intercepted.  For  the  party  in  sending  did  all  he  could : 
•the  treason  was  complete  on  his  /lartj  though  it  had  not  the  effect 
he  intended*, 

"  The  cases  cited  in  the  margin  did  not  in  truth  turn  singly  upon 
the  rule  here  laid  down,  though  I  think  the  rule  may  be  very  well 
supported.  For  Greg  was  indicted  for  comfiassing  the  death  of 
the  queen,  and  also  ybr  adhering  to  her  enemies;  andHensey's, 
indictment  was  in  the  same  form,  and  so  was  lord  Preston's  cited 
in  the  last  chapter.  And  the  writing  and  sending  the  letters  of  in- 
telligence, which  in  the  cases  of  Greg  and  Hensey  luere  stopped  ' 
at  the  post  office^  was  laid  as  an  overt  act  of  both  the  species  of 
treason.  So  that  admitting  for  argument's  sake,  which  is  l)y  no 
means  admitted,  that  it  was  not  an  overt  act  of  adheringy  since 
the  letters  never  came  to  the  enemy's  hands,  and  consequently  no 
aid  or  comfort  was  actually  given,  yet  the  bare  Avriting  and  send* 
ing  them  to  the  post  office  in  order  to  be  delivered  to  the  enemy» 
was  undoubtedly  an  overt  act  of  the  other  species  of  treason.  In 
Greg's  case  the  judges  did  resolve  that  it  was  an  overt  actof  bolli 
the  species  of  treason  charged  on  him.  And  in  Henscy's  the  court 
adopted  that  opinion,  and  cited  it  with  approbation. 

"  Though  the  cases  of  these  men  were  in  substance  the  same, 
the  charge  against  them  varied  in  one  particular.  Greg's  indict- 
ment chargeth  that  the  letters  were  sent  from  the  place  where  the 
venue  i^  laid  into  parts  beyond  the  seas  (in  paries  trans  marinas ) 

*  So  rulfd  in  Ih^f  cane  of  Williatr  Grr.:r,  nnd  in  fheca<sc  of  Dr 

IL'nsnj. 


Law  Miscellanies*  489 

To  raise  a  parricidal  hand^  is  the  cry,  against  the  country 
which  gave  you  birth.  Ubi  libertas,  ibi  patria,  where  liber- 
ty is,  there  is  my  country.  Must  this  maxim  go  for  nothing? 
Is  it  an  idle  aphorism,  and  of  no  meaning  in  the  mouth  of 

to  be  delivered  to  the  enemy.  Hensey's,  with  much  greater  pro- 
priety, and  agreeable  to  the  truth  of  the  case,  chargeth  that  the 
letters  were  sent  from  the  place  where  the  -venue  is  laid,  to  be  deli- 
■veredin  parts  beyond  the  seas  to  the  enemy.  As  the  letters  never 
went  abroad,  this  was  undoubtedly  the  safer  way  of  laying  the 
charge. 

"  Sec.  9.  An  assembly  ai-med  and  arrayed  in  a  warlike  manner 
for  any  treasonable  purpose,  is  bellum  levatunif  though  not  bellum 
fiercussian.  Listing  and  marching  are  sufficient  overt  acts  with- 
out coming  to  a  battle  or  action.  So  cruising  on  the  king's  sub- 
jects under  a  French  commission,  France  being  then  at  war  with 
us,  was  held  to  be  adhering  to  the  king's  enemies,  though  no  other 
act  of  hostility  was  laid  or  proved. 

«  Sec.  10.  Attacking  the  king's  forces  in  ofijiositio7i  to  his  autho- 
rity upon  a  march  or  in  quarters,  is  levying  war  against  the  king. 
But  if  upon  a  sudden  quarrel,  from  some  affront  given  or  taken, 
the  neighbourhood  should  rise  and  drive  the  forces  out  of  their 
quarters,  tha,t  would  be  a  great  misdemeanor,  and  if  death  should 
ensue,  it  may  be  felony  in  the  assailants  :  But  it  will  not  be  treason, 
because  there  was  no  intention  against  the  king's  person  or  govern- 
ment. 

"  Sec.  1 1.  Holding  a  castle  or  fort  against  the  kuig  or  his  forces, 
if  actual  force  be  used  in  order  to  keefi  possession^  is  levying 
war.  But  a  bare  detainer,  as  suppose  by  shutting  the  gates  against 
the  king  or  his  forces,  without  any  other  force  from  within.  Lord 
Hale  concciveth  will  not  amount  to  treason.  But  if  this  be  done  in 
confederacy  luith  enemies  or  rebels,  that  circumstance  will  make 
it  treason ;  in  the  one  case  under  the  clause  of  adhering  to  the 
king's  enemies,  in  the  other  under  that  of  levying  war.  So  if  a 
person  having  the  custody  of  a  castle  or  fort  deliver  it  up  to  the 
lebels  or  enemies,  by  treachery  and  in  combination  wit/i  them^  tliis 
is  high  treason  within  the  act :  in  the  former  case  'tis  levyhig  war, 
m  the  latter  it  is  adhering  to  the  king's  enemies.  But  mere  cow- 
ardice or  imprudence,  though  it  might  subject  a  commander  in 
-nrh  case  to  dcaih  by  the  maitial  law,  will  not  amount  to  treason. 
'•  S'ic.  12.^tate8  in  actual  IwstUity  with  us,  though  no  war  fee 
3Q 


490  Law  Miscellanies.   ■ 

the  great  Franklin,  whose  motto  it  was  said  to  be  ?  Is  man 
like  a  vegetable,  a  fossil,  that  he  must  belong  to  a  bed  of 
loam,  or  marl,  just  as  he  happens  to  originate  ?  No;  but  it 
is  the  society,  it  will  be  said,  that  attaches  him  by  root,  so 

solemnly  declared,  are  enemies  within  the  meaning  of  the  act. 
And  therefore  in  an  indictment  on  the  clause  of  adhering  to  the 
king's  enemies,  it  is  sufficient  to  aver  that  the  prince  or  state  ad^ 
hered  to  is  an  enemy ^  without  showing  any  war  proclaimed.  And 
the  fact,  whether  War  or  no,  is  triable  by  the  JU17;  and  public  no- 
toriety, is  sufficient  evidence  of  the  fact.  And  if  the  subject  of 
a  foreign  prince  in  amity  with  us,  invadeth  the  kingdom  without 
commission  from  his  sovereign,  he  is  an  enemy.  And  a  subject 
of  England  adhering  to  him  is  a  traitor,  within  this  clause  of  the 
act.  Or  if  an  alien  amy  acteth  in  a  hostile  manner  against  us  un- 
der a  commission  from  a  prince  or  state  at  enmity  with  us,  he  is  an 
enemy  within  the  act.  And  adhering  to  him  is  treason  within  this 
clause.   . 

"  So  if  a  subject  of  England  maketh  actual  war  on  the  king's  al- 
lies engaged  -with  him  against  the  common  enemy,  as  was  the  case 
of  the  States  General  in  our  wars  against  France  in  the  time  of 
king  William  and  the  late  queen,  this  is  adhering  to  the  king's  ene- 
mies, though  no  act  of  hostility  is  committed  against  the  king  or 
liis  forces.  For  by  this  the  common  enemy  is  strengthened,  and 
the  king's  hands  are  weakened. 

"  Sect.  13.  In  prosecution  for  these  treas'ons,  as  well  as  for 
that  of  compassing  the  death  of  the  king,  an  overt  act  of  the  trea- 
son  must,  as  I  have  already  observed,  be  charged  in  the  indictment 
and  proved.  This  rule  is  grounded  on  the  words  of  the  statute, 
which  being  a  declaratory  act  must  strictly  be  pursued.  The 
words  to  this  purpose  are,  "  Where  a  man  doth  compass,  &c. — 
♦'  or  if  a  man  doth  levy  war  against  our  lord  the  king  in  his  realm, 
"  or  be  adherent  to  the  king's  enemies  in  his  realm,  giving  them 
''  aid  or  comfort  m  his  realm  or  elsewhere,  and  thereof  be  \Jirrj 
"  valblement^  i.  e.  uponfuU  proof]  attainted  of  ofien  deed."  And 
therefore  it  will  not  be  sufficient  to  allege  generally  that  the  de- 
fendants did  levy  war  or  adhere.  But  in  the  former  case  it  must 
be  alleged  that  they  did  assemble  with  a  multitude  armed  and  ar- 
rayed in  a  warlike  manner,  and  levied  war.  And  in  the  latter,  acts 
of  adherence  must  be  set  forth. 

"  liut  the  particular  facts  done  by  the  defendants,  or  a  detail  Of 
Hip  pvu'.ejice  intended  to  be  given,  need  not  be  set  forth  in  either 


Law  Miscellanies.  491 

that  he  cannot  remove.  It  is  his  compact.  How  compact  ? 
Before  he  was  born  ?  No  ;  but  as  soon  as  he  was  born. 
That  cannot  be,  for  he  was  incapable  of  contracting.  But 
his  parents  contracted   for  him  ;   and  he  is  bound   by  their 

♦-ase.  The  common  law,  as  J  have  ah'cady  said  upon  a  Uke  occa- 
sion, never  required  this  exactness  :  and  the  statute  of  king  Wil- 
liam doth  not  make  it  necessary  to  charge  particulai*  facts,  where 
it  was  iK)t  necessary  before." 

The  question  will  now  occur ;  Are  we  bound  by  these  deci- 
sions, founded  in  constructions  given  to  the  clause  of "  levying 
war?"  The  decisions  of  the  judges  are  only  evidence  of  law, 
not  the  law  itself.  Where  the  decision  is  unreasonable,  it  cannot 
be  the  law.  There  is  a  higher  evidence  against  it,  than  the  opinion 
in  its  favour;  viz.  the  general  reason  of  the  human  mind.  Yet 
decisions  ought  to  be  regarded,  as  the  judgments  of  wise  men, 
rei/ionsa  firudentumf  and  in  some  case§,  to  be  followed  as  undeviat- 
ingly  as  the  law  itself.  For  instance,  where  under  a  decision,  that 
has  taken  place,  a  principle  hajs  been  settled  in  the  tenure  of 
estates,  by  grant,  devise,  or  in  personal  contracts,  which  must  be 
supposed  in  view,  at  the  time  of  the  grant,  devise,  or  contract.  It 
would  operate  with  an  effect,  ex  fiost  factOfXo  depart  from  the  de- 
cision. Nothing  of  this  can  exist  in  the  case  of  a  decision  on  the 
criminal  code,  where  it  is  in  favour  of  the  accused.  The  com!  is, 
(juoad  hoc  the  government,  and  a  rigorous  construction  docs  not 
bind.  It  may  relax.  But  a  liberal  construction  given,  concludes 
against  a  more  rigorous  one  in  future  cases.  Because  every  per- 
son is  supposed  to  know  the  decision,  and  to  be  told  that  in  the 
cognizance  of  offences,  hitherto  the  law  will  go,  and  no  further. 

Are  we  then  at  liberty  to  depart  from  the  constructions  given 
by  the  English  judges  to  the  clause  of"  levying  war  :"  I  have  no 
douI)t  of  it,  nay  think  that  pursuing  the  meliorating  spirit  of  the 
constitution,  and  of  our  legislature,  wc  are  bound  to  depart  from 
them  in-all  cases,  warranted  by  reason. 

Are  there  any  cases  where  the  decisions  appear  unreasonable  ^ 
There  are. 

In  order  to  illustrate  this,  I  first  observe  that  a"  war  levied"  is 
of  two  sorts,  1st.  Expressly  and  directly,  as  raising  war  against 
the  king,  or  his  general  and  forces ;  or  to  surprize  and  injure  the 
king's  person,  or  to  imprison  him,  or  to  go  to  his  presence  to  en- 
force him  to  remove  any  of  his  ministers  or  counsellors,  and  the 
like.     Jd.  Interpretatively  and  constructively,  as  when  a  war  is  le- 


492  Law  Miscellanies. 

contract.  This  brings  it  back  to  the  jus  parentale,  or  jus  in 
liberos;  and,  unless  it  can  be  made  out,  that  the  parent  ha& 
a  right  to  perpetual  service  and  subjection,  the  society  can- 
not have  it.     For  it  is  only  from  a  carrying  out  the  right  of 

vied  to  throw  down  enclosures  generally,  or  to  enhance  servants 
Wages,  or  to  alter  religion  established  by  law,  and  many  instances 
of  like  nature  might  be  given.  This  has  been  resolved  to  be  a 
war  against  the  king,  and  treason  within  this  clause.*  The  firsfe 
resolution,  says  Sir  Mathew  Hale,  that  I  find  of  this  interpretative 
levying  war,  is  a  resolution  cited  by  my  lord  Coke,  in  the  time  of 
Henry  VIII.  for  enhancing  servants  wages ;  and  the  next  in  time 
was  that  of  Burton,  39  Elizabeth,  for  raising  an  armed  force  to 
pull  down  enclosures  generally.  This  is  now  settled  by  these  in- 
stances, and  some  of  the  like  kind  hereafter  mentioned.  The  pro- 
ceeding against  Burton  and  his  companions,  was  not  upon  the  sta- 
tute of  25  Edward  III.  which  required  that  in  new  cases,  the  Par- 
liament should  be  first  consulted ;  but  upon  the  statute  of  1 S  Eli- 
zabeth :  for  conspiring  to  levy  war,  which  has  not  that  clause  of 
consulting  the  parliament  in  new  cases,  and  therefore  seems  to 
leave  a  latitude  to  the  judges,  to  make  constructions  greater  than 
was  left  by  the  statute  of  25  Edward  III. 

These  resolutions  being  made  and  settled,  we  must  acqui- 
esce in  them,  but  in  my  ofiinion,  if  new  cases  hapfien /or  the  future^ 
that  have  hot  an  express  resolution  in  point,  nor  are  expressly 
within  the  words  of  25  Edward  III.  though  they  may  seem  to  have 
a  parity  of  reason,  it  is  the  safest  way,  arid  most  agreeable  to  the 
wisdom  of  the  great  act  of  25  Edward  III.  first  to  consult  the 
Parliament,  and  have  their  declaration,  and  to  be  very  wary  in 
multiplying  constructive  and  interpretative  treasons ;  for  we  know 
not  where  we  will  enJ.f 

Will  it  not  sound  harshly  in  a  common  ear,  to  hear  it  said  that 
in  a  wrong  construction  of  the  law,  where  even  life  is  in^question, 
we  must  acquiesce  ?  yet  this  is  the  language  of  the  humane  sir 
Mathew  Hale. 

There  was  a  special  verdict  found  at  the  Old  Bailey,  20  Car, 
1 1,  That  A,  B,  and  C,  with  divers  persons  to  the  number  of  one 
hundred,  assembled  themselves,  modo  guerino,  to  pull  down  baw- 
dy houses ;  and  they  marched  with  a  flag  upon  a  staff,  and  wea^ 
pons,  and  pulled  down  ceijtain  houses  in  prosecution  of  their  con- 

*1  Hale.  132.  t  ^a/e,  1 32-, 


Law  Miscellanies.  4^ 

jiarents,  into  its  deductions,  that  the  society  can  have  a  right* 
Hutherford,  as  I  have  said,  and  I  cite  an  Englishman,  be- 
cause it  is  ad  hominem,  lays  it  down,  1  Inst.  Nat.  law,  170, 
that  "  the  law  of  nature  cannot  be  supposed  to  fix  any  pre- 

spii-acy.  This  by  all  the  judges  assembled,  but  one,*  was  ruled 
to  be  levying  war,  and  so  treason  within  this  statute  ;  and  accord- 
ingly they  were  executed.  But  the  reason  that  made  the  doubt 
to  him  that  doubted  it,  was  1st,  Because  it  seemed  but  an  unruly 
company  of  apprentices,  among  whom  that  custom  of  pulling  baw- 
dy houses  had  long  obtained,  and  therefore  was  usually  repressed 
by  officers,  and  not  punished  as  traitors.  2d,  Because  the  finding 
to  pull  down  bawdy  houses,  might  reasonably  be  intended  here  of 
there  particular  bawdy  houses,  and  the  indefinite  expression  in 
materia  odiosa,  be  construed  either  universally,  or  generally.  And 
3d,  Because  the  statute  of  1  Mary,  chapter  12,  though  now  dis- 
continued, makes  assemblies  of  above  12  persons,  and  of  as  high  a 
nature,  only  felony,  and  that  not  without  a  continuance  together  an 
hour  after  proclamation  made;  as  namely,  an  assembly  to  pul! 
down  bawdy  houses,  burn  mills,  or  to  abate  the  rent  of  any  manors, 
lands,  or  tenements,  or  the  price  of  victuals,  or  grain.  Sec. 

Yet  the  greater  opinion  obtained  as  was  fit,  says  the  author, 
and  these  apprentices  had  judgment,  and  some  of  them  were  exe- 
cuted as  for  high  treason. 

The  decision  in  the  case  of  pulling  do\vn  the  meeting-houses 
of  dissenters,  by  which  decision  it  was  construed  treason,  followed 
the  case  of  the  bawdy  houses.  The  distinction  would  have  been 
invidious,  to  have  made  it  treason  to  invade  brothels,  and  to  make 
it  less,  to  demolish  churches. 

The  construction  was  not  equally  rigid  in  the  case  of  the  insur- 
rection of  the  weavers,  in  1675,  on  which  occasion  the  judges  were 
assembled  to  consider.  Five  of  them  thought  this  treason  ;  five 
dissented.!  They  thought  it  not  like  the  design  of  altering  reli- 
gion, laws,  pulling  down  enclosures  generally,  nor  to  destroy  any 
trade  ;  but  only  a  particular  quarrel  and  grievance  between  men  of 
the  same  trade,  against  a  particular  engine  that  they  thought  a 
grievance  to  them ;  which  though  it  was  an  enormous  riot,  yet  it 
would  be  difficult  to  make  it  treason.:^  The  five  judges  who  were 
for  making  it  treason  had  relied  on  Burton's  case.     The  decision 

*  Sir  Mathcu)  Hale.  i  Hale.  132. 

4  1  Hale.  146. 


494  Law  Miscellanies. 

cise  age,  at  which  the  absolute  authority  of  parents  shall,  in 
all  cases,  cease,  and  all  persons  shall  be  looked  upon  to  be 
capable  of  acting  for  themselves.  Persons  are  then  arrived 
at  maturity,  when  they  come  to  the  use  of  their  reason.    But 

in  that  of  the  bawdy  houses,  did  not  then  exist ;  it  was  five  years 
after. 

I  conceive  the  question  fairly  open  for  discussion  ;  what  ought 
V>  be  the  construction  of  tl^e  clause  of  «  levying  war."  I  mean 
taking  up  the  subject,  as  certainly  we  have  a  right  to  do,  unshack- 
led by  the  decisions  of  the  English  Judges. 

Taking  up  the  subject  on  first  principles,  it  might  be  said,  tliat 
evQn  a  simple  trespass  tends  to  the  subversion  of  the  government  j 
and  every  breach  of  the  peace  is  said  to  be  against  the  peace  and 
dignity  of  the  commonwealth.  But  where  the  trespass  is  with 
numbers,  and  with  arms,  it  is  arrayed  more  formally  against  the 
order  of  society,  and  might  be  construed  treason.  It  was  with  a 
view  to  such  construction  that  the  statute  of  25  Edward  III.  pro- 
vides "  if  any  man  vide  armed  openly,  or  secretly  with  men  of 
arms,  against  any  other,  to  slay  or  to  rob  him,  till  he  made  fiaie  for 
his  deliverance,  it  is  not  the  mind  of  the  king,  nor  his  council,  that 
in  such  a  case  it  shall  be  judged  treason  ;  but  it  shall  be  judged 
felony  or  trespass  according  to  the  law  of  the  land,  of  old  time 
used,  and  according  as  the  case  requireth." 

It  was  on  this  principle  the  boundary  of  construction  was  set- 
lied  by  the  judges  generally  ;  that,  "  risings  to  maintain  a  private 
claim  of  right,  or  to  destroy  particular  inclosures  ;  or  to  remove 
luiisances,  which  affect,  or  were  thought  to  affect  in  jioiht  of  in- 
terest the  fiarties  assembled  for  those  purposes,  or  to  break  pri- 
sons m  order  to  release  particular  persons,  without  any  other  cir- 
cumstance of  aggravation,  have  not  been  hoi  den  to  amount  to  levy- 
ing war,  within  the  statute." 

It  must  be  therefore  an  insurrection  which  in  judgment  of  law 
is  intended  against  the  government,  to  overthrow  it ;  as  you 
would  break  a  machine  to  pieces,  or  to  stop  the  motion  of  it,  by 
breaking  or  obstructing  some  wheel  or  spring  that  is  necessary  for 
its  operation.  Yet  resistance  to  an  officer  in  the  execution  of  his 
process,  by  the  law  of  the  land,  is  but  an  aggravated  trespass, 
VVith  a  view  to  such  construction,  our  statute  has  provided,  '*  that 
jf  any  person  shall  knowingly  and  wilfully  obstruct,  resist,  or  op- 
pose any  officer  of  the  United  States,  in  serving  or  attempting  to 
e(;r.vej  or  execute  any    mesne  process,  or  warrant?  or  order  pf 


Law  Miscellanies.  4§5 

this  happens  at  different  times  of  life,  in  different  countries  ; 
in  some  climates,  ihe  mind  ripens  faster,  and  attains  to  the 
use  of  reason  sooner,  than  it  does  in  others.  In  the  same 
Country  too,  it  happens  at  different  times  of  life  to  different 

any  of  the  courts  of  the  United  States,  or  any  other  legal  or  judi- 
cial writ,  or  process  whatsoever,  or  shall  assault,  beat,  or  wound 
any  officer,  or  other  person  duly  authorised,  in  serving  or  execut- 
ing any  writ,  rule,  order,  process,  or  warrant  aforesaid,  every  per- 
son so  knowingly  and  wilfully  offending  in  the  premises,  shall,  on 
conviction  thereof,  be  imprisoned  not  exceeding  twelve  months, 
and  fined  not  exceeding  three  hundred  dollars."* 

I  would  in  tlie  first  place  lay  aside  constructive  treasons  alto- 
gether, and  confine  the  law  to  a  direct  attack  upon  the  government, 
and  in  the  second  place  I  would  confine  it  to  an  attack,  aniino  sub- 
vert endi.  Will  it  not  be  easy  then  to  meditate  the  overthrowing 
the  government,  and  go  on  to  execute  it  by  a  resistance  to  a  law, 
and  by  risings  for  indirect  purposes,  without  a  possibility  of  mak- 
ing pix)of  of  an  animus  subvertendi,  or  conspiracy  to  overthrow  ? 
Let  it  be  left  to  the  jury  to  presume,  or  infer  from  the  acts  them- 
selves, what  the  intention  was ;  but  let  it  always  be  in  view  as 
the  essence  of  the  act,  that  there  was  a  directly  looking  forward  in 
the  mind  of  the  person,  to  a  subversion  of  the  government,  before 
it  be  construed  treason.  Every  outrage,  without  this  essential  ex- 
pedient may  be  repressed,  and  punished  under  the  idea  of  a  riot, 
subjecting  to  fine,  pillory,  imprisonment,  and  hard  labour.  This 
will  be  more  agreeable  to  the  common  sense  and  feelings  of  man- 
kmd,  who  must  be  struck  with  a  sense  that  the  outrage  is  a  riot, 
but  to  whom  it  cannot  be  obvious,  that  it  was  meditated  as  an  at- 
tempt upon  the  government  itself,  amounting  to  high  treason. 
It  is  only  by  deduction  and  inference,  that  it  becomes  so. 

There  will  be  no  evidence,  that  any  of  those  concerned  in  the 
attack  of  the  house  of  the  inspector  of  the  revenue,  general  Ne- 
ville, ever  thought  of  subverting  the  government,  or  had  an  idea 
that  the  act  would  be  construed  treason.  Whatever  the  ultimate 
views  of  these  may  have  been,  who  projected  the  taking  the  ma- 
gazine at  Pittsburgh,  certain  it  is,  thai,  the  bulk  had  no  looking 
forward  of  mind  to  more  than  a  redress  of  what  they  called  griev-* 
ances,  under  the  government.     If  the  construction  therefore  for 

*  Laws  of  the  United  Staicn. 


406  Law  MiscELLANfls. 

persons :  all  who  live  in  the  same  climate,  do  not  come  to 
maturity  of  judgment,  at  the  same  age.  No  particular  per- 
son, therefore,  can  be  said  naturally  to  have  arrived  at  years 
of  discretion^  or  he  capable  of  acting  for  himself ;  till  we  have 

which  I  have  contended,  is  supportable,  either  of  these  acts  will 
amount  to  a  riot  only. 

It  will  be  said  that  our  legislature,  in  excerpting  the  very* 
words  of  the  clause  from  the  statute  25  Edward  III.  must  be  sup- 
posed at  the  time  to  have  had  an  eye  to  the  construction  given  to  this 
clause  by  the  decisions  of  the  English  courts ;  and  by  adopting  the 
terms,  has  sanctioned  the  interpretation.  The  presumption  doubt- 
less exists.  But  it  does  not  necessarily  follow ;  and  in  favour  of 
life,  unless  it  necessarily  follows,  let  not  the  construction  govern. 
The  legislature  may  have  attended  to  the  constructions,  or  they 
may  not  ;  the  question  admits  a  doubt.  This  being  the  case,  it 
is  contrary  to  the  law  maxims  of  humanity,  to  establish  the  pre- 
sumption. The  legislature  intent  upon  restraining  the  treason 
law  to  a  single  clause,  may  not  at  the  same  time,  have  pursued 
the  constructions  of  that  clause  in  their  minds.  It  is  not  proba- 
ble they  did.  It  was  not  necessary.  The  judges  had  the  power 
to  construe  these  words,  on  principle  of  reason,  with  the  same 
licence  as  if  they  never  had  been  in  a  treason  table  of  England.. 
The  ultimate  question  then  will  be,  whether  it  be  necessary  for 
the  preservation  of  the  government,  that  the  treason  law  be  car- 
ried so  far  as  to  make  the  circumstances  in  the  case  of  Neville's 
house,  or  the  march  to  Braddock's  fields,  amount  to  that  offence. 

I  admit  that  by  the  decision  of  the  English  judges,  the  attack 
upon  the  house  of  the  inspector,  is  clearly  treason.  For  though 
it  was  not  destroying  all  inspection  offices,  yet  it  was  for  a  pur- 
pose  of  a  fiublic  nature^  and  in  •which  the  insurgents  had  no  spe- 
cial or  individual  interest,*  exclusively  of  the  community. 

I  also  must  admit  that  the  march  to  Braddock's  field,  by  the 
same  consti-uction,  must  be  treason ;  for  though  the  expelling  in- 
dividuals would  be  but  a  violent  trespass  in  itself:  yet  connected, 
as  it  was,  with  a  view  to  the  operation  of  a  law  which  these  men 
were  supposed  to  countenance  and  support,  it  will  be  brought  to 
the  same  thing.  But  the  question  may  be  made,  whether  it  be 
necessary  for  the  preservation  of  the  government,  that  these  or 

*  Foster,  2  U . 


Law  Miscellanies.  497 

observed  how  that  particular  person  behaves  in  common 
life.  When  he  shews  by  his  behaviour,  that  he  has  the  use 
of  his  reason,  then,  and  not  till  then,  he  is  past  his  natural 
viiiiority, 

like  cases  be  adjudged  treason,  where  no  evidence  is  alleged  of 
an  avowed  intention  to  bring  about  a  revolution. 

Elementary  writers,  at  the  head  of  whom  is  the  marquis  de 
Beccaria,  have  with  great  plausibility,  questioned  the  right  of  so- 
ciety to  punish,  by  taking  life  at  all.  They  stand  on  surer  ground, 
who  question  only  the  necessity.  By  the  Russian  code,  and  that 
of  Tuscany,  it  has  been  reduced  to  an  experiment ;  and  capital  pu- 
nishment is  found  not  necessary.  The  only  use  of  this  at  present, 
is  to  enforce  a  leaning  of  the  mind  towards  a  construction  of  the 
law,  that  will  resti'ain  it  to  the  highest  species  of  treason,  and  what 
alone  ought  to  bear  the  name  ;  a  conspiracy  to  overthrow  the  go- 
vernment. 

As  our  treason  law  stands,  it  is  more  the  interest  of  the  go- 
vemment  in  point  of  reparation  from  the  offender,  to  have  the  act 
considered  in  the  light  of  an  aggravated  riot  only,  than  to  have  it 
made  treason ;  in  which  case  there  is  no  forfeiture  of  property.* 
Reasons  of  policy  would  therefore  lead  to  that  construction  of  the 
clause,  for  Avhich  I  have  contended. 

Nothing  can  be  right  that  is  contrary  to  the  feelings  of  the  hu- 
man heart,  and  at  which  the  reason  of  the  common  mind  re- 
volts. Let  it  be  told  one  of  these  accused,  that  the  essence  of 
the  charge  against  him  is  an  attempt  to  shake  the  foundations  of 
the  government  to  which  he  had  sworn  allegiance,  and  to  overturn 
as  far  as  in  him  lay,  the  existing  order  of  society,  with  all  the  ad- 
vantages of  security  to  person,  property,  and  fame  ;  and  to  bring 
about  anarchy  at  first,  and  tyranny  of  one  or  a  few  in  the  end.  He 
would  say,  I  never  had  such  a  thought.  Others  will  believe  him; 
and  they  cannot  feel  an  acquiescence  with  the  law  that  would  by 
construction  fix  this  design  upon  him. 

In  every  other  crime,  it  is  known  and  contemplated  to  the  ex- 
tent, what  the  individual  is  about  to  perpetrate.  In  homicide,  he 
knows  he  is  about  to  kill  a  man  ;  in  burglar}^,  to  break  a  house  : 
in  larceny,  to  steal  an  article.     The  fact  in  its  nature  and  conse- 

*  "  JVo  conditioner  judgment  y  for  any  of  the  offences  aforesaid., 
nhall  zDork  corrufition  of  bhod,  or  any  forfeiture  of  estate ." 

LaiVH  of  United  States,  15,1. 

3  R 


498  Law  Miscellanies. 

"  Civil  laws  do,  indeed,  usually  fix  some  certain  age,  as 
the  limit  of  minority  for  all  the  subjects."  The  law  of  Eng- 
land has  fixed  this  at  the  age  of  21.  Until  this  period,  the 
parental  authority   exists,   which  is  founded  in  the  duty  to 

quences  exist  clearly  to  his  mind.  He  is  under  no  necessity  of 
construing  and  inferring,  in  order  to  know  what  he  is  about.  It 
is  the  quo  aniino,  the  mind  with  which  a  thing  is  done,  that  is 
at  all  thnes  to  be  considered.  And  if  it  cannot  be  found  tliat 
the  mind  meant  the  act,  it  cannot  be  considered  as  the  act  of  the 
mind,  which  is  the  man. 

I  Avould  therefore  understand  our  law,  as  having  in  view  only 
a  fixed,  formed,  deliberate  intention  of  subverting  the  government, 
as  that  offence  which  it  will  construe  high  treason,  and  punish  with 
the  loss  of  life  itself  The  accused  had  meditated  death  to  the 
government,  and  the  law  in  this  case,  and  this  case  only,  will  me- 
ditate death  to  him. 

The  legislature  of  the  United  States  contemplating  precisely 
»\ich  a  case  as  that  of  the  insurrection  of  the  western  countiy,  has 
provided  for  the  suppressing  it  by  an  act  of  May  2d,  1790. 
"  Whenever  the  laws  of  the  United  States  shall  be  opposed,  or 
the  execution  thereof  obstructed  in  any  state,  by  combinations  too 
powerful  to  be  suppressed,  by  tlie  ordinary  course  of  judiciary  pro- 
ceedings, or  by  the  power  vested  in  the  marshal,  by  this  act ;  the 
same  being  notified  to  the  president  of  the  United  States  by  an 
associate  justice,  or  the  district  judge,  it  shall  be  lawful  for  the 
president  of  the  United  States  to  call  forth  the  militia  of  sUch 
st-atc,  to  suppress  combinations,  and  shall  cause  the  laAvs  to  be 
duly  executed.  And  if  the  militia  where  such  combinations  may 
happen,  shall  refuse,  or  be  insufficient  to  suppress  the  same,  it 
shall  be  lawful  for  the  president,  if  the  legislature  of  the  Unite  d 
States  be  not  in  session,  to  call  forth  and  employ  such  numbers  ol" 
the  militia  of  any  other  state  or  states  most  convenient  thereto, 
as  may  be  necessary,  until  the  expiration  of  thirty  days,  after  the 
commencement  of  the  ensuing  session."  The  "  opposing  the 
laws,  or  obstructing  t^ie  execution,"  are  the  phrases  ;  not  that  of 
traitorously  conspiring  to  subvert  the  government.  So  that  it 
would  seem  to  have  had  in  view,  an  insurrection  for  a  purpose  of 
lui  inferior  nature,  and  calls  it,  "an  unlawful  combination,"  which 
though  tending  in  its  consequence  to  overthrow  the  government, 
vet  had  not  tiiat  for  itsi  object  in  the  contemplation  of  the  actors. 
We  are  relieved,  therefore,  by  tliis  act,  from  an  oljjection  whir^i 


Law  Miscellanies.  499 

provide  for  the  child.  "  This  authority,"  says  the  same  au- 
thor, p.  168,  "  must  necessarily  cease,  when  the  duty  ceases 
upon  which  it  is  founded  :  after  the  child  is  able  to  think 
and  to  judge  for  itself,  it  is  no  longer  the  duty  of  the  parent 
to  think  and  to  judge  for  it ;  and  consequently  the  will  of  the 
child  is  no  longer  under  the  absolute  control  of  their  will. 
However,  they  have  still  a  demand  upon  it  of  gratitude, 
esteem,  and  reverence :  it  is  still  bound  to  honour  them,  by 
shewing  all  marks  of  respect,  and  more  particularly  by  pay- 
ing a  deference  to  their  advice  and  direction.  For  as  they, 
from  their  longer  experience,  are  more  likely  to  judge  right- 
ly than  the  child  is ;  so  their  former  care  of  it,  may  convince 
it,  that  they  are  disposed  to  contrive  for  its  welfare.  But, 
notwithstanding  the  child  owes  them  this  duty  of  honour, 
they  have  not,  as  its  parents,  such  authority  over  it,  as  to 
restrain  its  acts,  because  the  obligations  to  these  duties,  are 
of  the  imperfect  sort." 

If  the  child,  after  coming  to  the  years  of  maturity,  and 
being  at  its  own  hand,  if  I  may  so  express  it,  acquires  pro- 
perty independent  of  the  parent,  has  it  not  a  right  to  protect 
that  property  against  the  trespass  of  the  parent^  and  go  to 
laxv  for  that  purpose?  This  proves,  that  by  the  law  of  na- 
ture, or  society,  it  is  not  unlawful  to  resist  the  wrong  of  a 
parent,  as  injury  to  property,  or  person.  Can  it  be  unlawful 
then  to  resist  the  wrong  of  the  society  under  which  one  was 
born,  merely  because  it  must  be  considered  in  the  light  of 
a  parent  society  ?  If  it  is  lawful  to  emigrate  at  all,  and  be- 
come the  member  of  a  new  community,  it  must  be  lawful  to 
join  in  resistance  to  the   parent  society  if  it  does  wrong  to 

might  exist,  that  unless  such  outrages  as  these  were  construed 
treason,  the  power  of  the  federal  government  could  not  move  to 
suppress  them.  On  the  ground,  therefore,  of  the  preservation  of 
the  union,  I  see  no  necessity  to  carry  our  construction  of  tho 
clause  of  "  levying  war,"  so  far  as  to  embrace  llie  late  acts  in  the 
western  country  within  the  crime  of  treason. 

If,  in  any  case,  proof  can  be  directly  made,  or  if  the  jury,  from 
ihe  facts  themselves,  cannot  but  presume  that  a  subversion  was  in 
'■ended,  it  maybe  so  construed, but  not  otherwise. 


oOO  Law  Miscellanies. 

the  new  community,  and  to  fulfil  the  obligations  to  tkat  Jiew 
society  of  'which  it  has  become  a  member.  If  this  reasoning 
is  conclusive,  it  must  be  lawful  to  carry  arms,  defensive, 
or  offensive,  as  the  nature  of  the  case  may  be,  against  the 
parent  state.  For  this  is  necessary  to  the  existing  as  a  mem- 
ber of  the  new.  To  make  it  treasonable^  therefore,  after 
having  become  a  member  of  a  new,  to  bear  arras,  and  be- 
ing taken  in  jjirms  to  be  punished  capitally,  is  contrary  to 
the  laws  of  nature ;  as  the  being  taken  prisoner^  and  put  to 
deatli^  is  contrary  to  the  laxvs  of  arms.  This  is  an  extent, 
therefore,  of  the  law  of  treason  in  England,  beyond  the  law 
of  Pennsylvania,  as  it  was  before  the  Union,  or  under  the 
Union,  exists  here.  Unless  indeed  chief  justice  Ellsworth's 
doctrine,  in  the  case  of  Williams,  should  be  considered  the 
law,  that  in  these  states  no  one  can  put  off  his  allegiance  to 
the  government.  Chief  justice  Ellsworth,  a  great  and  up- 
right man,  I  acknowledge,  and  for  whose  memory  I  have  a 
high  respect ;  did  he  never  suffer  the  subject  of  a  foreign 
government  to  be  naturalized  in  his  courts,  and  hear  the 
oath  of  abjuration  taken  renouncing  all  subjection,  and  alle- 
giance, more  especially  to  that  sovereign,  or  state,  of  which 
the  naturalized  had  been  a  member  ?  Did  it  ever  come  into 
his  mind  that  one  so  naturalized,  could  owe  but  a  qualified 
allegiance  to  these  states,  of  whose  supreme  court,  he  was  a 
judge  ? 

Did  it  enter  into  the  mind  of  the  judge,  that  the  new  ci- 
tizen was  not  equally  bound,  with  all  others,  to  do  militia 
duty ;  and,  if  for  the  sake  of  offence,  or  defence,  the  sove- 
reign authority,  should  order,  he  was  not  bound  to  obey  ? 
If  so,  could  he  say  that  the  new  citizen  was  not  equally 
bound  to  be  protected,  whether  upon  the  sea,  or  upon  the  dry 
land?  Could  a  distinction  be  drawn  between  his  rights  and 
his  duties,  from  that  of  any  other  member  of  the  communi- 
ty? The  truth  is,  it  was  an  over-sight  in  the  chief  justice, 
and  looking  to  what  had  been  considered  the  law  of  Eng- 
land, he  did  not  distinguish  in  the  case.  I  excuse  the  judge, 
us  being,  I  am  confident,  an  inadvertency;  but  I  lay  it  down 
as  a  nefarious  principle,  and  outraging  human  reason  to  give 


Law  Miscellanies.  iOl 

it  the  least  countenance.  We  have  the  right  of  every  other 
independent  country,  to  consider  every  one  coming  to  our 
shores,  and  manifesting  an  intention  of  joining  our  society, 
as  entitled  to  be  received,  and  protected,  by  land,  or  water, 
within  ou»  municipal  jurisdiction^  and  beyond  it^  by  the  arm 
of  the  nation.  As  to  the  expediency^  I  say  nothing ;  I  leave 
that  to  the  politicians.  I  lay  it  down  only,  that  naturaliza- 
tion involves  the  duty^  and  the  pledge  of  protection  ;  and  a 
citizen  of  the  United  States^  chusing  to  expatriate^  in  time  of 
peacey  is  not  liable  to  our  treason  law,  even  though  found  in 
arms  with  a  foreign  force  invadirig  us. 

As  to  the  expediency,  I  mean  the  policy,  of  naturalizing- 
at  all ;  and  not  repealing  the  whole  body  of  the  naturaliza- 
tion acts  of  congress  ;  I  do  not  mean  to  connect  this,  because 
I  know  it  would  be  denying  a  yiatiiral  right  to  those  of  a 
more  populous  countiy,  emigrating  to  a  country  less  popu- 
lous in  proportion  to  the  soil,  and  it  would  be  denying  our- 
selves a  right  to  take  them  ',  and  it  could  be  on  the  principle 
of  self-preservation  that  we  could  dispense  with  the  taking 
them.  But  as  to  the  letting  all  go  that  chuse  to  go,  I  con- 
sider it  not  only  their  right,  but  our  interest.  We  have  no 
such  Merino-breed  of  men,  that  there  can  be  any  thing  in  the 
way  to  hinder  it.  Those  that  emigrate  from  us,  consult 
what  they  think  their  own  interest,  and  we  may  be  well  rid 
of  them.  Whether  Britain,  were  there  not  a  matter  of  pride 
in  the  way,  might  not  say  the  same  thing,  I  leave  it  to  her 
to  determine. 

But  to  return  from  my  digression.  The  treason  law  ol 
England  has  been  rendered  sanguinary  by  the  construction 
of  the  judges.  "  One  witness  to  one  overt  act,  and  a  second 
witness  to  another  overt  act  of  the  same  species  of  treason," 
is  an  instance  of  this.  But  still  more  the  leariiiig  of  the  judg- 
es to  convict  on  a  charge  of  treason.  I  do  not  believe  that  in 
the  whole  state  trials  in  England,  there  will  be  found  a  case, 
where  there  was  not  that  leaning  visible,  where  it  was  evi- 
dent the  crown  wished  a  conviction,  whether  in  a  case  of 
misdemeanor,  or  of  felony  of  treason.  In  the  case  of  Aaron 
Burr,  with  us,  the  leaning,  if  any,  was  the  other  way,  and 


502  Law  Miscellanies. 

therefore  I  consider  the  principles  laid  down  in  that  trial,  as 
gaining  much  to  the  citizen  of  the  United  States,  as  a  bar- 
rier against  the  application  of  British  rules  in  the  construc- 
tion of  treason.  It  contains  some  excellent  land-Hiarks,  that 
may  serve  to  guide  in  after  times,  when  parties'  may  pre- 
vail, ^xid  Judges  may  have  the  same  leaning"  with  the  prosecu^ 
tor  for  the  state.  Not  that  I  mean  to  insinuate  any  thing  the 
least  disrespectful,  to  the  executive,  or  to  the  court,  in  this 
instance,  but  the  contrary,  and  as  a  trial,  in  opposition,  to 
all  that  we  have  seen  in  England,  where  the  accused,  for 
high  treason,  could  scarcely  ever  be  said,  to  have  had  a  fair 
chance  for  his  life. 


"  In  civil  cases,  we  have  seen  that  every  defendant  is  bailable  ; 
but  in  criDiinal  matters  it  is  otherivise."     4  Bl.  Com.  296. 

AVITH  submission  to  Dr.  Blackstone,  says  Junius,  "  I 
think  he  has  fallen  into  a  contradiction,  which,  in  terms  at 
least,  appears  irreconcileable.  After  enumerating  several 
offences  not  bailable,  he  asserts,  without  any  condition,  or  li- 
mitation whatsoever,  "  all  these  are  clearly  not  admissible  to 
bail."  Yet  in  a  few  lines  after,  he  says,  "  It  is  agreed  that 
the  court  of  king's  bench  make  bail  for  any  crime  whatsoe- 
ver, according  to  the  circumstances  of  the  case."  To  his 
first  proposition  he  should  have  added,  by  sheriffs  or  justices  ; 
otherwise  the  two  propositions  contradict  each  other  :  with 
this  difference,  however,  that  the  first  is  absolute,  the  second 
limited  by  a  consideration  of  circumstances.^^  These  were 
the  words  of  the  first  edition  of  the  commentaries  upon  which 
junifus  animadverts;  a  contradiction ;  which  I  will  acknow- 
ledge perplexed  me  not  a  little  at  an  early  period.  But 
in  a  subsequent  edition,  the  words,"  all  these  are  clearly  not 
admissible  to  hail^''  have  been  omitted.  Nevertheless  in  ano- 
ther part,  the  words  at  the  head  of  this  note  preserve  the 
contradiction  in  some  degree  taken  by  themselves  as  they 
stand  in  the  sentence.     For  if  in    all  cases  a  defendant  is 


Law  Miscellanies.  503 

bailable;  but  in  criminal  matters  it  is  otherwise.,  it  must  fol- 
low that  in  criminal  matters^  every  defendant  is  not  bailable. 
He  still  should  have  added,  that  it  is  otherwise  in  criminal 
matters,  unless  by  a  judge  of  the  king's  benchy  or  by  that  court. 

In  his  letters  to  lord  Mansfield,  Junius  undertakes  to 
prove  that  unless  in  a  case  short  of  being  taken  in  the  main- 
or,  the  Lord  chief  justice  of  England,  has  no  more  right  to 
bail  than  a  justice  of  the  peace ;  that  a  person  positive- 
ly charged  with  felonies,  stealing,  and  taken  in  flagrante  de- 
lictOy  with  the  stolen  goods  upon  him  is  not  bailable.  I  agree 
with  Junius  that  if  the  lord  chief  justice  did  bail,  it  was  an 
abuse  of  his  discretion.  And  upon  this  principle  our  consti- 
tution has  settled  it :  by  Art.  9.  Sec.  14.  '*  All  prisoners 
shall  be  bailable,  unless  for  capital  offences,  when  the  proof  is 
evident  or  presumption  great.''"' 

This  I  take  it  to  have  been  precisely  what  the  comtnon 
law  was  before  the  provision  of  statute  in  England,  or  con- 
stitution here.  But  the  constitution  here  specifies  what  the 
discretion  of  the  judge  at  common  laxv  would  have  dictated  to 
be  his  duty. 


4'  All  presumptive  evidence  of  felony  should  be  admitted  cau- 
tiously."    4  Bl.  Com.  358. 

THERE  is  what  is  called  violent  presumption ;  that  is 
where  such  circumstances  exist  as  usually  attend  the  fact. 
Presumptive  proof  of  this  nature  is  held  sufficient  to  convict. 

In  a  playful  work  published  some  years  ago }  and  where 
I  thought  myself  at  liberty  to  support  even  a  paradox,  it  be- 
ing evident  that  I  did  not  mean  to  be  serious  in  every  thing, 
I  advanced  some  sentiments  on  this  head,  which,  as  not  be- 
ing continued  in  the  second  edition,  I  may  here  extract.  It 
is  from  what  I  had  entitled  Modern  Chivalry,  Vol.  I.  p.  99 ; 
and  is  as  follows. 

*'  I  doubt  much  whether  reason  or  experience.,  (that  is  of 
conviction  or  presuniptive  evldt-nce)  approve  the  doctrine. 


.'504  Law  Miscellanies. 

Reason  tells  us  that  there  may  be  all  the  circumstances  that 
usually  attend  the  fact ;  and  yet,  without  the  fact  itself.  Ex- 
perience evinces  that  it  has  been  the  case  ;  for  we  have 
heard  of  persons  convicted  ef  a  capital  offence ;  and  yet  with 
their  last  breath,  asserting  innocence.  Nay,  in  the  very  case 
of  some  who  have  been  supposed  to  have  been  murdered; 
(hey  have  afterwards  been  found  to  be  alive.  But,  on  ab- 
stract principle,  a  conclusion  of  certainty  cannot  he  drawn 
Jrom  presumptive  proof .  Because,  in  a  case  of  the  most  violent 
presumption,  there  is  still  a  possibility  of  innocence;  and 
where  there  xsdi  possibility^  there  must  be  a  doubt;  and  will 
you  hang  man,  woman,  or  child,  where  there  is  a  doubt  P 

"  In  all  cases,  there  ought  to  be  complete  proof,  because 
the  convicted  person  is  to  be  completely  hanged;  and  the 
jury  previous  to  this,  must  find  a  verdict  upon  oath ;  that 
is,  must  make  complete  oath  of  the  guilt, 

**  It  is  the  ground  of  the  doctrine  of  presumptive  prtmf, 
that  where  you  cannot  help  suspecting,  you  ought  to  be  po- 
sitive ;  whereas  the  just  conclusion  would  be,  that  where  you 
cannot  help  suspecting,  there  you  ought  to  suspect  still ;  but 
no  more, 

"  In  algebra  minus  multiplied  by  minus,  makes  plus ; 
but  not  so  in  arithmetic.  In  mathematics,  the  three  angles 
of  a  triangle,  are  equal  to  two  right  angles ;  but  these  are 
all  angles  that  are  put  together ;  they  are  things  of  the  same 
kind ;  but  the  greatest  angle,  and  the  longest  side,  will  ne- 
ver make  a  triangle,  because  there  is  no  inclusion  of  space. 
There  must  be  a  number  of  things  of  the  same  kind,  to  make 
an  aggregate  whole ;  so  that  ten  thousand  possibilities,  pro- 
babilities, and  violent  presumptions,  can  never  constitute  a 
certainty.  It  can  never  be  made  a  question,  how  many  un- 
certainties, will  make  a  certainty. 

"  Semi  plena  probatio ;  or  the  going  but  half  way  to- 
wards proof,  cannot  amount  to  proof  sufficient  to  convict. 
For  a  miss  is  as  good  as  a  mile.  If  the  evidence  is  not  po- 
sitive to  the  fact,  how  can  the  jury  find  the  fact ;  because  as 
the  current  cannot  rise  higher  than  the  source,  so  the  verdict 
of  the  juror  ought  not  to  be  more  absolute  than  the  oath  of 


Law  Miscellanies.  505 

the  witness.  In  all  cases,  therefore,  short  of  positive  testi- 
mony, what  can  be  done  but  to  acquit  ? 

"  These  hints  may  be  of  service  to  weak  judges;  so, 
that  honest  people  may  not  lose  their  lives,  or  be  rendered 
infamous,  without  full  proof  of  the  offence.  It  is  hard 
enough  to  suffer,  where  there  is  full  proof;  but  to  be  in  the 
power  of  a  juror,  or  a  judge's  imagination,  comparing,  and 
construing  circumstances,  and  weighing  probabilities,  con- 
tingencies, and  what  might  have  been  ;  or  what  might  not 
have  been,  as  the  humour,  wheel  or  whim  of  the  brain  may 
suggest,  is  inconsistent  with  that  fair  trial,  which  in  a  free 
government  ought  to  be  allowed.  Were  I  a  juror,  it  would 
seem  to  me  I  should  not  find  a  verdict  without  positive  evi- 
dence of  the  fact.  For  it  would  not  be  in  my  power  to  re- 
store that  fame  or  life  which  I  had  taken  away;  and  if  a 
guilty  person  should  escape,  it  was  none  of  my  look  out ; 
but  the  business  of  providence  to  furnish  proof;  and  if  proof 
was  not  furnished,  let  providence  take  the  matter  on  him- 
self; and  punish  the  culprit  either  in  this  life^  or  in  a  future 
state.  Invisible  things  belong  to  the  Omniscient ;  and  it 
would  seem  great  arrogance  in  man  to  take  upon  him  to  de- 
cide in  cases  of  uncertainty,  I  can  declare,  that,  in  the 
course  of  my  experience  at  the  bar,  I  have  known  one  hung, 
and  two  others  within  an  ace  of  it,  who  were  innocent.  The 
one  that  was  hung  was  a  tory  case,  where  the  popular  cla- 
mour was  against  the  man,  and  light  presumption  became 
violent  under  such  a  charge,  from  the  temper  of  the  times, 
and  that  part  of  the  country  where  the  conviction  took 
place." 

So  far  the  extract  from  this  publication,  and  though  I 
might  not  be  disposed  to  lay  it  down  at  this  time,  to  such 
extent ;  viz.  that  I  would  not  convict  at  all  upon  circumstan- 
tial proof  in  criminal  cases  ^  yet  a  great  distinction  ought  to  be 
taken  in  the  consequence.  For  though  the  life  of  man  might 
not  be  safe,  were  it  understood  that  nothing  short  of  posi- 
tive testimony  should  convict  of  murder  ;  and  circumstances 
are  said  to  speak  as  strong  as  words  or  stronger  even  ;  yet, 
I  should  think  that  death  in  case  of  conviction  short  of  po- 

3   S 


503  Law  Miscellakies. 

skive  evidence  ought  not  to  be  the  consequence  ;  but  im- 
prisonment only.  It  might  be  left  to  providence  to  discover, 
and  bring  to  light  a  fact  which  might  shew  innocence  ;  but, 
after  life  shall  be  taken  away,  there  is  not  this  room  left. 
And  we  do  know,  from  history,  and  trials  in  criminal 
cases,  many  instances,  where  providence  after  the  legally  con- 
demned, but  innocent  person  executed,  has  brought  to  light 
facts  which  have  established  the  innocence  ;  and  in  one  case 
at  least,  known  in  our  reports,  that  no  murder  had  been  at 
all  committed.  I  refer  to  the  case  of  the  uncle  and  his  niece. 
She  was  heard  to  say,  O  !  uncle  do  not  kill  me,  after  which 
she  v/as  missing,  because  she  had  absconded  with  a  relation 
in  a  distant  part  of  the  kingdom.  He  was  condemned  upon 
the  presumption  of  circumstanctr,  and  was  executed.  She  af- 
terwards appeared  to  claim  his  estate. 

I  have  not  the  book  by  mc ;  nor  do  I  know  of  more  than 
one  copy  in  this  country,  "  A  report  of  criminal  cases  in  the 
high  court  of  sessions,  Scotland,"  by  an  advocate  of  that 
court,  a  Mr.  Arndt ;  but  I  will  cite  the  outlines  of  one  case 
from  memory. 

A  person  convicted  of  murder  upon  evtdetice  Jrom  circum- 
stance^ and  the  day  of  his  execution  fixed,  solicited  earnestly 
a  reprieve  for  three  months  ;  and  that,  if  providence  did  not 
in  that  time  interpose  for  him  by  bringing  the  truth  to  iighty 
he  would  be  resigned  to  the  dispensation ;  but,  that  he  had 
a  strong  impression,  providence  would  not  resist  his  prayers, 
which  for  the  sake  of  his  family,  he  had  so  earnestly  put  up. 
A  reprieve  was  obtained  for  this  space  of  time  ;  and  the 
lord  president  of  the  sessions  going  in  the  mean  time,  to  a 
summer  residence  in  the  north,  overheard  some  men  that 
were  at  work  in  a  stone  quarry,  under  the  hill  by  the  road 
side,  say  to  one,  why  so  down  cast  this  day  ?  What  is  the 
matter  ?  Matter  enough  said  he.  There  is  a  man  to  be  hung 
this  day  at  Edinburgh^  for  a  murder  xvhich  I  committed.  He 
was  ap'prehended,  and  confessed  the  whole,  viz.  That  had 
been  the  daij  appointed  for  the  execution  of  him  xvho  had  been 
reprieved.  The  result  was,  if  I  recollect  right,  they  were 
both  pardoned.     The  first  because  it  had   appeared  that  he 


Law  Miscellanies.  507 

never  ought  to  have  been  convicted ;  and  the  last  because  It 
would  be  an  inconsistency  in  legal  proceedings,  to  hang  one 
for  a  murder yxvhich  the  luzu  had  said,  had  been  committed  by 
another. 


Extract  from  Malcoine's  Miscellaneous  Anecdotes ;  published, 

1811. 

THE  following  shocking  article  appeared  in  most  of  the 
newspapers  of  1681. 

"  From  Dublin  we  have  an  account,  that  at  the  last  ses- 
sions there,  an  innkeeper  being  condemned  for  robbing  on 
the  highway,  when  he  was  at  the  gallows,  confessed  an  hor- 
rid murder,  complicated  with  most  strange  circumstances, 
which  he  had  committed.  The  story,  take  as  foUoweth. 
Last  Christmas,  two  persons,  strangers  to  one  another,  came 
into  his  inn,  the  one  of  them  having  a  considerable  charge  of 
money.  After  they  were  in  bed,  and  asleep,  he  took  the 
sword  of  the  person  who  had  the  least  money,  and  killed  the 
other,  and  put  the  sword  into  his  scabbard  again,  all  bloody. 
The  person  whose  sword  was  made  use  of,  arose  in  the  morn- 
ing early  ;  called  for  his  horse,  and  prosecuted  his  journey, 
so  soon  as  he  was  gone,  the  innkeeper  goeth  into  the  room 
where  the  murdered  person  lay,  and  witli  a  seeming  amaze- 
ment, cried  .out  that  one  of  his  guests  was  murdered,  and, 
upon  search,  found  that  his  money  was  lost.  Every  one  sus- 
pected the  person  who  so  lately  rode  forth ;  upon  which  he  was 
pursued,  overtaken,  and,  the  innkeeper  drawing  his  sword, 
it  was  bloody,  which  was  so  strong  a  presumption  of  guilt, 
that,  being  tried  for  his  life,  he  was  found  guilty.  But,  on 
the  other  side,  the  innocence  of  his  countenance,  and  beha- 
viour when  he  was  apprehended,  and  the  extreme  surprize 
he  seemed  to  be  possessed  with  at  the  sight  of  his  bloodv 
sword,  and  his  not  deviating  from  the  right  road  to  the  place 
he  overnight  discoursed  to  be  travelling  unto,  and  the  mo- 
ney h)3t  not  being   found   about   liim,   the  judge   had  some 


^08  Law  Miscellanies. 

scruple  upon  his  mind,   and  obtained   a  repi'ieve   for  himi 
and  upon  this  confession  of  the  innkeeper,  a  full  pardon." 

I  add  the  following  case  in  which  I  was  of  counsel,  and 
the  only  counsel,  for  the  defendants. 

In  Westmoreland  county,  Pennsylvania,  in  the  year 
1782,  two  persons  by  the  name  of  Miller,  and  Cunningham, 
were  indicted  on  a  charge  of  murder  before  judges  Pente- 
cost, Cook  and  Hays,  commissioned  to  hold  a  court  of  oyer 
and  terminer,  for  that  and  other  counties  west  of  the  moun- 
tains. Two  hunters,  the  deceased  one,  coming  early  to  the 
cabin  of  Cunningham  (the  son)  were  entertained  by  him,  and 
his  bottle  of  whiskey  produced.  After  having  drank  what 
was  in  it,  they  wanted  more ;  and,  offered  to  buy  a  quart, 
that  they  might  shoot  at  a  mark,  the  loser  to  pay  for  it.  He 
said  that  he  had  but  a  small  quantity  in  a  keg  which  he  shew- 
ed, and  had  it  for  the  use  of  people  that  were  to  come  that 
day  to  put  up  a  cabin  for  his  brother-in-law.  Miller,  pointing 
to  Miller  who  was  there  in  the  house  with  him.  Miller's  wife, 
tl|e  sister  of  Cunningham ;  and  Cunningham  the  father,  were 
the  only  persons  then  in  the  house.  This  the  surviving  of 
the  hunters,  and  Cunningham  the  father  testified  on  their 
examination,  on  the  trial,  as  also  what  follows  ;  viz.  that  the 
deceased  of  the  Hunters,  insisted  on  having  a  quart  to  shoot 
for  with  his  companion,  and  they  would  pay  for  it.  Cun- 
ningham persisted  in  refusing,  and  for  the  same  reasons. 
Upon  which  the  deceased  drew  his  tomahack  from  his  belt, 
and  swore  he  would  split  the  keg,  unless  he  got  the  whiskey, 
and  advanced  seemingly  in  order  to  do  it.  Upop  this  Cun- 
ningham (the  son)  laid  hold  of  him  to  prevent  him,  and  a 
scuffle  ensued.  The  deceased  threw  Cunningham  across  the 
fire ;  from  which,  by  an  exertion,  he  recovered,  and  got  the 
deceased  down.  The  surviving  hunter,  had  in  the  mean 
time  been  interposing  as  he  said  to  part  tJie  combat- 
ants ;  but  as  Cunningham,  (the  father)  said,  it  was  to  as- 
sist his  com/ianion',  under  which  impression  the  father  laid 
hold  of  the  surviving  hunter,  and  endeavoured  to  put  hira 
out  of  the  house  j  and  did  put  him  out,  and  the  scuffle  conti- 
nuing some  small  distance  out  of  the  house,  the  surviving 


Law  Miscellanies.  509 

hunter,  whose  face  was  towards  the  house,  saw  his  compa- 
nion, the  deceased,  as  he  testified  at  the  door ;  and  just  in  the 
inside,  as  )ie  had  his  hand  upon  the '  cheek  door,  he  was 
knocked  down  with  the  but-end  of  his  own  rifle,  as  it  after- 
wards appeared  to  be,  and  with  which  stroke  the  barrel  was 
broke  from  the  stock.  In  this  case  the  blow  could  not  have 
been  given  but  by  one  of  the  three ;  the  sister  of  Cunningham, 
the  younger;  Miller's  wife;  or  by  Miller  himself;  or  by 
Cunningham^  the  younger.  No  one  would  think  of  the  sis- 
ter a  very  young  woman,  of  apparent  timidity,  and  delicate 
appearance  ;  and  the  surviving  hunter  testified  that  she  ap- 
peared much  frightened  on  the  occasion.  Miller  was  put  in 
the  bill  of  indictment;  but  the  suspicion  did  not  attach  so 
much  to  him,  as  to  Cunningham,  the  younger,  who  had  been 
in  grips  with  the  deceased,  and  had  appeared  to  have  the  ad- 
vantage  in  the  struggle.  Miller  could  not  be  called  upon  to 
accuse  himself;  nor  to  accuse  Cunningham  ;  for  that  would 
be  the  same  thing  as  to  excuse  himself;  or  in  other  words, 
give  testimony  for  himself;  since  one  or  the  other  of  the  two 
must  have  committed  the  homicide.  The  sister,  the  wife  of 
Miller,  could  not  be  called  upon  to  give  testimony  against 
her  husband  ;  nor  against  Cunningham,  for  that  would  be  the 
same  thing  as  testifying  for  her  husband,  since  if  Cunning'- 
ham  was  the  slayer,  Miller,  could  not  be. 

I  had  asked  Cunningham  (the  son)  in  whose  favour 
would  the  sister  lean  in  case  she  was  called  upon  to  give 
evidence.  His  answer  was  in  favour  of  her  husband.  But 
if  his  father  had  a  leaning,  in  whose  favour  would  it  be.  His 
answer  was  it  would  be  in  favour  of  him  the  son. 

From  the  narrative  of  Cunningham,  the  son  to  me,  he 
stated  that  having  got  the  deceased  down,  he  dc  sisted,  and  let 
him  up,  and  that  he  the  deceased  had  turned  to  go  out,  pro- 
bablj^to  join  his  companion  out  of  doors,  v»'ho  was  engaged 
with  old  Cunningham,  who  appeared  by  far  the  stoutest  man 
of  the  whole.  That  Miller,  in  the  mean  time,  had  seized 
a  rifle  of  the  hunter,  and  turning  the  but-end,  struck  at  the 
deceased;  and  with  so  powerful  a  blow,  that  it  broke  off  the 
stock  at  the  lock,  and  billed  him. 


510  Law  Miscellanies. 

In  the  communication  of  Miller  and  his  wife  to  me,  and 
of  Cunningham,  whom  I  heard  separately,  it  was  understood, 
that  being  counsel,  I  could  not  give  testimony  of  it,  or  was 
not  bound  to  do  it ;  so  that  no  danger  could  follow  from  a 
confession  of  the  real  truth  of  the  case.  Miller,  or  his  wife, 
were  silent,  as  to  the  manner  in  which  the  matter  happened, 
but  Cunningham  gave  a  relation  with  simplicity,  and  perfect 
consistency  with  all  the  circumstances  testified  by  his  father, 
and  by  the  surviving  hunter.  I  had  no  doubt  of  his  inno- 
cence. Nevertheless,  tht.  opinion  of  the  public  was  against 
him;  and  the  same  jury  passing  upon  Miller,  found  no  diffi- 
culty in  acquitting,  but  hung  18  hours  upon  Cunningham; 
but  finally  acquitted ;  not  upon  any  doubt  they  had  of  Cun- 
ningham's guilt ;  but  on  my  argument  contending  that  so 
outrageous  a  trespass^  and  the  necessity  of  self-preservation, 
made  it  justifiable. 

In  examining  old  Cunningham,  I  had  asked  him,  whe- 
ther, when.the  one  with  whom  he  was  engaged  out  of  doors, 
and  who  had  disengaged  himself,  and  was  making  to  re-en- 
ter, in  appearance^  to  assist  his  companion,  had  drawn  his 
tomahack  from  his  belt,  and  was  advancing  with  it.  He  said 
no.  But  when  he  came  to  be  sworn,  he  took  care  to  add  this 
circumstance,  and  to  say  that  he  had  his  tomahack  drawn. 
The  surviving  hunter,  said  he  had  not ;  but  the  question  was, 
which  of  these  should  be  believed.  In  convicting  both  Cun- 
ningham and  Miller,  one  innocent  person  must  have  suffer- 
ed, and  if  one  had  been  convicted,  it  would  have  been  the 
innocent ;  and  this  from  the  presumption  of  circumstances. 

This,  I  take  it,  was  the  only  special  commission  of  Oyer 
and  Terminer,  issued  since  the  formation  of  the  constitution, 
in  1776;  and  one  person  who  was  convicted  of  a  capital  of- 
fence, at  this  court,  was  afterwards  pardoned  ;  John  Dickin- 
son, who  succeeded  to  the  presidency  of  the  council^  having 
doubts  as  to  the  legality  of  such  a  commission  issuing. 


OBSERVATIONS 


ON 


ACTS  OF  ASSEMBLY  THAT  MAY  BE  REPEALED 
OR  MODIFIED. 


Act  of  3d  December,  1782. 

THE  act  entitled  an  act  to  prevent  the  erecting  any  new 
and  independent  state  within  the  limits  of  this  common- 
wealth, 3d  December,  1782,  might  be  repealed;  the  occa- 
sion that  gave  rise  to  it  having  ceased  to  exist.  It  was  a 
consequence  of  the  cession  made  by  Virginia  to  Pennsylva- 
nia of  some  part  of  the  territory  claimed,  with  a  view  to  a 
compromise.  The  inhabitants  of  the  territor}'  ceded  did  not 
see  the  reason  of  such  cession ;  nor  were  they  willing  to 
acknowledge  the  justice  of  it.  The  truth  is,  it  involved  a 
great  question ;  viz.  how  far  a  state  could  cede  territory, 
and  another  state  acquire  jurisdiction,  with  a  view  to  a  set- 
tlement of  boundary.  Nothing  but  what  comes  under  the 
head  of  the  transcendental  right,  as  Burlamaqui  stiles  it, 
could  excuse  it,  or  justify;  the  salus  populi  suprema  lex. 
I  have  no  doubt  now  but  that  the  people  in  that  part  of  the 
state,  at  that  time,  had  the  right  to  have  objected;  and  re- 
fuse submission  to  the  Pennsylvania  government.  But  I 
thought  otherwise  at  the  time,  and  took  a  decidedpart  in  sup- 
port of  the  Pennsylvania  jurisdiction.  It  was  shortly  after 
the  cession  in  the  spring  of  1781,  that  I  went  to  that  country, 
entering  on  the  practice  of  the  law,  having  been  before  ad- 
mitted in  the  court  of  common  pleas  of  Philadelphia.  The 
Pennsylvania  courts  were  shortly  afterwards  established  in 
that  part  of  the  country,  the  county  of  Washington,  which 
comprehended  the  principal  part  of  it,  having  been  before 


512  Law  Miscellanils. 

laid  out.  Conventions  in  the  mean  time  were  holden,  and 
the  sense  of  the  people  taken  as  to  submission  or  resistance. 
The  idea  was  to  declare  themselves  independent  of  Virginia 
or  Pennsylvania,  in  the  same  mannet  as  Vermont  had  done 
of  the  states  of  Massachusetts  and  New  York.  It  was  sug- 
gested that  a  new  state  might  be  formed  Vith  a  seat  of  go- 
vernment at  Pittsburgh,  having  the  Kanhaway  on  the  one 
side  for  a  boundary,  with  Muskingum  and  Lake  Erie  on  the 
other,  and  to  the  eastward  the  Allegheny  mountain.  I  will 
not  say  that  but  for  me  this  would  have  taken  place ;  but  I 
certainly  contributed  very  much  to  obstruct  the  proposition. 
Could  I  have  foreseen  the  want  ©f  support  in  the  Indian  war 
from  the  state  of  Pennsylvania,  or  Virginia,  or  from  the  United 
States,  the  people  being  left  to  defend  themselves  in  a  great 
measure,  I  might  have  been  disposed  to  think  that  an  indepen- 
dent government  would  have  been  most  advisable  for  their 
support  and  preservation.  But  be  that  as  it  may,  so  it  is  that 
a  contrary  policy  was  advocated  and  prevailed.  -  It  was  kt  my 
instance,  and  on  my  representation  through  the  Pennsylva- 
nia representatives  to  the  legislature,  that  the  act  in  question 
passed ;  and  I  believe  it  is  the  only  act  in  the  code  which 
contains  a  clause  of  changing  the  venue,^ 

This  act  may  be  repealed,  as  now  unnecessary  under  the 
general  government.  See  the  constitution  of  the  United 
States,  art.  4.  sec.  3. 

I  have  said,  that  I  did  not  think  but  that  it  might  have 
been  justifiable  in  the  people  of  the  territory  ceded,  to  have 
considered  themselves  as  thrown  into  a  state  of  nature^  and 
to  have  formed  a  nexv  and  independent  government ;  because 
what  authority  had  states  to  cede,  when  in  pursuance  of  the 
9th  article  of  the  confederation  then  existing,  a  judicial  tri- 
bunal was  established,  by  which  the  controversy  might  have 
been  determined,  the  principle  settled,  and  the  actual  boun- 

*  By  a  subsequent  act,  3 1st  August,  1785,  the  clause  changing 
the  venue  is  repealed  as  contrary  to  the  constitution,  that  trials 
shall  be  by  a  jury  of  the  vicinage.  Tliis  would  seem  affirmatory 
of  the  principle  that  the  venue  cannot  be  chsnged  in  a  criminal 
case. 


« 


Law  Miscellanies.  513 

dary  ascertained  ?  The  principle  which  governed  me  chiefly 
was  the  consideration  suggested  in  the  act ;  viz.  that  the 
commonwealth  of  Pennsylvania  had  succeeded  to  the  proprie- 
tary ownership  of  soil)  and  was  pledged  to  pay  a  consider- 
able sum  in  compensation  to  the  charter  proprietaries  ;  and 
the  ungranted  lands  in  that  quarter  was  a  fund  for  raising 
the  compensation  to  be  made  ;  and  of  which  I  thought  it 
would  be  unjust  to  deprive  the  rest  of  the  community.  But 
if  I  had  known  the  little  account  to  which  this  turned  after- 
wards by  the  mismanagement  of  the  legislature,  and  the  land 
office,  and  speculators  intending  a  great  deal,  but  making 
little  for  themselves-;  and  all  these  things  obstructing  the 
improvement  and  population  of  the  country,  I  might  have 
thought  less  of  the  value  of  my  efforts  on  this  occasion. 
Whatever  they  were,  certain  it  is,  that  I  encountered  some 
danger  in  opposition  to  the  popular  current,  on  the  Virginia 
side  of  the  state.  But  it  is  not  consistent  with  my  object  in 
the  present  book  to  go  farther  into  what  might  be  called  a 
matter  of  histary  rather  than  of  jurisprudence. 


An  act  to  regulate  arbitrations,  and   proceedings  in  courts  of 
justice.     21  March,  1806. 

THE  system  of  arbitration  under  this  act,  I  have  always 
considered  as  a  matter  of  experiment ;  and  was  well  satisfied 
that  the  experiment  was  made,  and  a  fair  trial  given  it.  For 
it  appeared  to  me,  that  though  it  might  not  answer  the  expec- 
tations of  the  most  sanguine,  yet  some  improvement  tnight 
grow  out  ofitk  I  have  considered  the  appeal  as  objectiona- 
ble, so  far  as  respects  the  party  ivho  calls  for  the  rule  of  re- 
ference beiyig  entitled  to  it.  And  this,  I  take  it,  has  been 
found,  upon  experiment,  to  be  a  grievance. 

In  the  year  1807,  on  the  circuit  towards  Lake  Erie,  I 
fell  in  with  an  inhabitant  unknown  to  me,  and,  to  whom  I 
was  unknown ;  and  entering  into  conversation  v/ith  him,  on 
the  affairs  of  the  country,  I  found  him  dissatisfied  with  it, 

3  T 


AM-  Law  Miscellanies. 

and  disposed  to  leave  it.  His  grounds  of  dissatisfaction, 
were  a  great  variety  of  matters ;  but,  amongst  these,  he 
spoke  of  the  hills,  the  roads,  the  mountains  as  unpleasant ; 
and  the  winds,  the  weather,  and  the  seasons,  as  unfavoura- 
ble :  but  most  of  all,  the  laws,  the  lawyers,  the  justices,  the 
judges,  the  courts  and  arbitrations.  What  of  the  justices^ 
said  I,  you  have  an  appeal  in  some  cases,  and  where  they 
do  wilful  wrongs  there  is  a  law  enabling  you  to  take  deposi- 
tions, and  bring  them  to  account.  Ay,  said  he,  but  if  we  do 
get  a  hitch  upon  them,  and  bring  them  to  the  trig,  they  plead 
ignorance^  and  who  can  dispute  that  ? 

But  as  to  judges,  said  I,  you  have  the  presidents  of  dis- 
tricts ;  do  not  they  do  pretty  well  ?  Why,  said  he,  they 
might  be  of  some  use^  if  they  would  let  the  jury  take  their 
own  way,  but  this  they  will  not  do.  They  swear  them ;  but 
dont  swear  themselves,  and  so  are  at  liberty  to  say  just  what 
they  please. 

But  said  I,  you  have  circuit  Judg-es  that  come  trotting  up 
here  J  (circuit  courts  had  not  been  then  abolished  j)  judges  of 
the  supreme  court,  they  call  them,  what  fault  do  you  find 
with  these  ?  Why,  said  he,  I  have  been  at  some  of  their 
courts  j  and  have  heard  their  charges  ;  and  they  seem  to 
steer  pretty  clear  a  while,  in  the  trial  of  a  cause  j  but  to- 
wards the  winding"  up^  I  have  observed,  that  they  always 
lean  a  little  more  to  one  side  than  the  other. 

As  to  the  judges  not  being  sworn,  said  I,  presidents  or 
circuit  court  judges,  they  are  sworn  at  Jirst^  when  they  take 
the  oath  of  ojffice.  That  is,  said  he,  like  the  man  saying  grace 
over  a  tub  of  beef  which  he  salted  up  ;  but  none  when  he  sat 
down  to  dinner. 

But,  said  I,  in  the  administration  of  justice,  there  is  a 
way  provided  of  getting  clear  of  judges  ;  you  have  your  ar- 
bitrations ;  justice  brought  home  to  your  own  doors.  If  a 
cause  is  brought  into  court,  you  can  take  it  out,  and  leave 
the  judges  sitting  on  their  stools  with  nothing  to  do.  A}-, 
said  he,  but  they  have  a  trick  of  takitig  the  cause  back  again; 
so  that  we  arc  just  where  xve  were  at  first  ^  with  more  costs  to 
pay. 


Law  Miscellanies.  SIS 

Though  this  Illustration  of  the  way  of  thinking  of  the 
people  is  introduced  with  a  view  of  pleasantry  not  always 
suitable  for  a  serious  work,  yet  it  did  appear  to  me,  and  does 
now,  that  appeals  ought  to  be  restrained,  to  the  party  called 
upon  to  refer.  Why  shall  he  who  calls  for  a  reference,  appeal 
from  a  tribunal  of  his  own  chusing,  unless  in  the  case  of 
misbehaviour  of  parties,  or  of  referees  ?  This  is  the  common 
iaxv  ground  of  setting  aside  an  axvqrd. 


Act  of  Assembly,  21  March,  1806.     Sec.  13. 

''  That  in  all  cases  where  a  remedy  is  provided,  or  duty 
enjoined,  or  any  thing  directed  to  be  done  by  any  act,  or  acts 
of  assembly  of  this  commonwealth,  the  directioiis  of  the  said 
acts,  shall  be  s^ric^/^/ pursued,  &c." 

This  is  a  section  of  an  act  entitled, "  an  act  to  regulate  ar- 
bitrations and  proceedings,  in  courts  of  justice."  It  is  not 
improbable  that  the  arbitration  acts  will  receive  a  revision 
by  the  legislature  at  no  distant  day }  and  if  so,  I  would  recom- 
mend the  striking  out  the  word  strictly  in  this  section.  It 
is  not  only  a  maxim  of  the  common  law,  but  is  a  dictate  of 
humanity^  and  a  maxim  of  reason,  that  penal  laws  be  constru- 
ed strictly,  but  remedial  laws  liberally.  The  courts  have 
been  much  embarrassed  with  this  word,  and  at  a  loss  to  know 
what  to  make  of  it.  It  certainly  could  not  be  the  intention 
of  the  legislature  to  change  the  rule  of  construction  in  this 
particular ;  and  yet  it  has  the  appearance  of  doing  it.  Wliile 
therefore,  we  are  endeavouring  to  reach  the  sense  of  the  act 
in  this  particular,  we  are  transgressing  the  letter  of  the  provi- 
sion. That  I  may  explain  what  I  mean,  I  will  cite  the  lan- 
guage of  Blackstone,  on  the  liberal  construction  of  terms.  3 
Bl.  Com.  430. 

"  A  court  of  equity  determines  according  to  the  spirit  of 
the  rule,  and  not  according  to  the  strictness  of  the  letter.  In 
general  laws  all  cases  cannot  be  foreseen  ;  or  if  foreseen  can- 
not be  expressed;    some  will  arise  that  will  fall  within  the 


ol6  Law  Misclllanies. 

meaning;  though  not  within  the  words  of  the  legislature,  and 
others,  which  may  fall  within  the  letter^  may  be  contrary 
to  his  meaning'^  though  not  expressly  excepted.  These 
cases  thus  out  of  the  letter,  are  often  said  to  be  within  the 
equity  J  of  an  act  of  parliament ;  and  so  cases  within  the  let- 
ter, are  frequently  out  of  the  equity.  Here,  by  equity,  we 
mean  nothing  but  the  sound  interpretation  of  the  law  ;  though 
the  words  of  the  law  itself  may  be  too  general,  too  special ; 
or  otherwise  inaccurate  or  defective.  These  then  are  the 
cases  which,  as  Grotius  says,  "lex  non  exacte  definit  sed 
arbitrio  boni  viri  perniittit,"  in  order  to  find  out  the  true 
meaning  of  the  law  given,  from  every  other  topic  of  construc- 
tion."    3  Bl.  Com.  430. 

We  have  an  English  statute,  28  Hen.  8.  c.  T.  Sec.  28, 
which  provides  "  that  the  present  act  shall  be  taken  and  accept- 
ed according  to  the  plain  words  and  sentences  therein  contain- 
ed,''^ It  might  as  well  have  enacted  that  the  words  should  be 
plain,  and  hdivcno  ambiguity  ;  and  the  arrangement  of  a  sen- 
tence or  sentences,  be  so  intelligible  that  no  misunderstand- 
ing in  the  case,  should  take  place ;  or  have  enacted  that  all 
judges  whose  province  it  was,  to  construe  them,  should  have 
no  difference  of  opinion  ;  or,  that  all  judges  should  have 
legal  knowledge,  and  good  sense.  Notwithstanding  such  a 
statute,  it  might  puzzle  a  king  in  that  country,  to  find  judges 
who  would  all  agree,  if  they  exercised  their  individual  judg- 
ments ;  or,  that  would  understand  a  statute  precisely,  as 
each  one  of  the  legislature  might  say,  they  had  intended ;  for, 
perhaps  even  the  members  of  parliament  among  themselves, 
might  not  agree,  as  to  what,  in  their  opinions,  the  meaning 
of  the  statute  was. 

The  truth  is,  it  is  one  of  the  most  difficult  things  to  ex- 
press an  idea  in  such  manner  that  there  can  be  no  mistaking. 
Let  any  one  think  of  giving  an  order,  or  direction  to  an  a- 
gent  J  or,  of  having  given  instructions  to  an  intelligent  per- 
son relative  to  the  most  common  business  ;  and,  how  often 
will  he  find  that  he  has  not  been  sufficiently  comprehended. 
Or,  in  the  case  of  receiving  instructions  from  an  intelligent 
person,  how  ofteiT  will  he  find  that  the  meaning  is  somewhat 
to  be  guessed  :*:.     But  how  much  will  the  chances  of  an  un- 


Law  Miscellanies.  517 

certain  meaning  occur  when  the  subject  of  the  direction  is  on 
a  matter  not  familiar  to  the  common  yyund^  and  involves  a 
great  scope  of  action  that  is  to  be  embraced  by  the  rule. 
Cases  that  occur,  will  often  prove  that  the  highest  powers  of 
the  human  mind  are  not  adequate  to  the  anticipating  of  them. 
It  is  not  in  human  nature  to  foresee  every  thing.  It  is  under 
a  sense  of  the  difficulty,  I  have  heard  it  said,  that  the  wisest 
head  could  not  frame  a  law,  but  a  cart  and  horses  viiglit  be 
driven  through  it.  If  it  can  be  at  all  done,  it  must  certain- 
ly be  by  one  who  understands  the  use  of  terms  ;  the  arrange- 
ment of  words ;  the  remedy  to  be  provided,  or  the  duty  en- 
joined; and  can  foresee^  like  a  skilful  general,  when  he  lays 
the  plan  of  a  campaign,  or  disposes  his  troops  for  an  engage- 
ment, where  it  is  that  the  adversary  may  find  a  weak  part^ 
or  make  an  impression. 

But  from  the  number  of  minds  that  are  to  be  consulted 
before  a  bill  can  pass  the  chambers  of  the  legislature,  were 
it  even  drawn  in  the  most  skilful  manner^  it  will  be  disturbed  by 
amendments.  According  to  the  proverb,  many  cooks  spoil 
the  soup.  In  the  nature  of  the  case,  it  is  impossible,  always, 
to  avoid  ambiguity  where  alterations^  by  additions  or  by 
striking  out,  are  made.  There  will  be  as  many  different 
meanings  to  be  extracted,  as  there  are  spellings  of  the  word 
Sunbury  on  the  hand-boards,  on  the  road  from  the  town  of 
Reading  to  that  place.  Of  this  we  have  a  remarkable  in- 
stance in  the  construction  put  upon  the  9th  section  of  the 
act  of  3d  April,  1792.  The  judges  of  the  supreme  court 
adhered  to  the  letter;  and  even  these  differed  among 
themselves.  The  judges  of  the  state  (supreme  court)  en- 
deavoured to  reach  what  they  considered  the  intention,  and 
even  these  as  to  the  intention,  differed  :  some  adhering  less 
or  more  to  the  letter,  others  rejecting  the  letter^  and  following 
what  they  took  to  be  the  7tieaning  altogether.  The  ambiguity 
of  what  is  expressed,  has  led  to  much  difference  of  opinion 
pn  the  bench,  and  has  been  the  source  of  litigation  to  the 
people.     Where 

"  More  is  meant  than  meets  the  ear," 
\i\\\  be  the  case,  in  all  diction.     But  if  the  letter  is  to  go- 


518  Law  Miscrllanies. 

vern  ;  and  if  what  is  said  must  be  taken  strictly^  the  substan- 
tial meaning  and  intention  will  oftentimes  be  lost. 

A  dilTerence  of  inclination  to  construe  according  to  the 
letter  or  intention^  6\\\Acd  the  Roman  lawyers.  There  were 
those  •"  who  contended  for  a  strict  adherence  to  the  letter 
and  forms  of  the  law ;  others  for  a  benign  interpretation  of 
it,  and  for  allowing  great  latitude  in  the  observance  of  its 
forms.^^  Butler's  Horse  Juridicfe,  49. 

I  always  thought,  says  lord  Mansfield,  in  a  report  of  the 
case  of  Perrin  v.  Blake,  which  has  come  into  my  hands, "  that 
the  strict  adherence  of  courts  of  justice  to  the  letter  of  the 
law,  is  productive  of  the  worst  consequences.  In  all  ages 
there  will  be  strict  lawyers.  But  it  is  to  be  hoped  that,  in 
all  ages,  there  will  be  lawyers  of  a  different  bent  of  genius, 
and  a  different  course  of  education." 

It  cannot  but  be  supposed,  that  there  will  be  a  wide  dif- 
ference between  the  penning  of  an  act  of  the  legislature,  and 
that  of  a  last  will  and  testament.  In  the  one  case,  great  de- 
liberation, and  by  men  selected  for  their  understandings  ; 
in  the  other,  by  the  individual  presumed  to  be  inops  con- 
silii,  or  unassisted  ;  and  in  many  cases,  in  a  great  degree 
unlettered ;  and,  it  may  be,  in  his  last  sickness.  Yet  the 
same  principle  will  apply  in  one  case,  as  well  as  the  other, 
viz.  that  the  intention  is  to  govern.  That  it  is  oftentimes 
difficult  to  get  at  this  intention,  is  certain.  For  where  an  un- 
lettered individual  himself  draws  or  dictates  his  will,  or 
rather  dictates  the  heads  of  it ;  or  where  an  ordinary  scri- 
vener, such  as  may  occur,  puts  it  into  language,  it  must,  in 
most  cases,  defeat  his  intention  to  be  collected  from  the 
whole  will,  if  the  letter  is  to  govern.  I  introduce  the  case 
of  wills  only  to  illustrate  what  I  mean  by  construction  ac- 
cording to  intention,  not  that  I  would  put  an  act  of  assembly 
to,  the  same  extent,  on  a  footing  with  the  construction  of 
wills,  for  the  reasons  already  given.  For  in  wills  there  i$ 
Qhtntivats  great  difficidty.  When  Satan  went  on  his  voyage 
to  the  new  world,  our  earth,  Milton  occupies  the  fallen  angels 
in  his  absence,  with  discussing  metaphyscis. 


Law  Miscellanies*  519 

"  Others  apai-t  sat  on  a  hill  retired, 
In  thoughts  more  elevate,  and  reasoned  high 
Of  providence,  fore-knowledge,  will,  and  fate, 
Fixed  fate,  free-will,  fore-knowledge  absolute, 
And  found  no  end  in  wandering  mazes  lost." 
Had  last  wills  and  testaments  been  then,  he  might  have 
given  these  to  construe.     Not  that  they  might  not  be  able  to 
find  out  the  meaning  by  the  mumping,  if  the  intention  -was  to 
govern^  but  if  adhering  to  the  letter^  they  would  find  such 
contradictions,  and  inconsistencies,  that  it  would  be  difficult 
to  know  what  to  make  of  it. 

The  English  are  divided  on  the  subject  of  construing 
wills.  All  agree  that  the  intention  is  to  govern,  save  where 
a  technical  term  occurs ;  and  in  this  case  some  are  governed 
by  the  term;  or,  in  other  words,  by  the  letter.  So  that  it  is 
not  what  a  man  meant,  but  what  he  ought  to  mean  by  the 
rules  of  art f  th-it  is  to  guide.  Nor  is  it  even  what  technical 
rules  will  permit  him  to  mean ;  but  it  is  a  compound  of  the 
two,  what  he  meant,  and  what  he  ought  to  mean,  that  con- 
stitutes the  enigma  and  comes  to  be  unriddled.  This  will 
sometimes  be  a  question  worthy  of  CEdipus  to  the  Sphynx. 
For  in  one  case,  it  will  be  said,  the  intent  controuls  the  tech- 
?iical  term  ;  and,  in  another,  the  technical  term,  controuls  the 
intent, 

"  I  am  sensible,"  says  sir  Joseph  Jekyll,  (master  of  the 
rolls,)  2  Peere  Williams,  J'41,  "  there  is  a  diversity  of  opi- 
nion among  the  learned  judges  of  the  present  time,  whether 
the  legal  operation  of  words,  in  a  will;  or  the  inte?it  of  a 
testator  shall  govern.  For  my  part  I  shall  always  contend 
for  the  intention;  and  I  think  the  strongest  authorities  are 
on  that  side.  For  if  the  intention  is  sometimes  to  govern,  as 
it  is  admitted,  it  must,  and  not  always  give  way  to  the  legal 
construction  ;  and,  yet  at  other  times,  shall  not  govern,  there. 
will  then  be  no  rule  to  judge  by;  nor,  will  any  lawyer  know 
how  to  advise  his  client;  a  mischief  which  judges  ought  to 
preveat."  And,  by  lord  Mansfield,  2  Burr.  770.  "  No  tech- 
nical  wdrds  are  necessary  to  convey  a  testator's  meaning  ; 
and,  whenever  that  is  doubtful,  it  must  be  collected  from  the 
whole  scope  of  the  xvhole  will  compared  with  the  several 


520  Law  Miscellanies. 

parts."  And  In  Perrin  and  Blake's  case,  he  says,  "  That 
he  always  thought,  that,  as  the  law  had  allowed  a  free 
communication  of  intention  to  a  testator,  it  would  be  a 
strange  law  to  say,  now  that  you  have  communicated  that 
intention  so  that  every  one  understands  what  you  mean,  yet 
because  you  have  used  a  certain  expression  of  art,  we  will 
cross  your  intention^  and  give  your  will  a  different  construc- 
tion ;  though  what  you  meant  to  have  done  is  perfectly  le- 
gal ;  and,  the  only  reason  for  contravening  your  intention,  is 
because  you  have  not  expressed  yourself  like  a  lawyer." 
Such  was  the  judgment  of  a  majority  of  the  king's  bench. 
But,  in  the  exchequer  chamber,  on  a  hearing,  it  was  revers- 
ed. The  majority  of  the  judges  stuck  to  the  strict  letter, 
and  the  technical  terms  of  the  will. 

In  this  country  the  bulk  of  judges  have  followed  this  de- 
cision of  the  exchequer,  because  it  was  that  of  the  majority. 
Judge  Pendleton,  in  Virginia,  did  not  follow  it,  as  has  been 
already  noted. 

"  Victrix  causa  diis  placuit,  sed  victa  Catoni." 
Judge  Tucker,  in  his  notes  on  Blackstone,  recognizes 
this  way  of  thinking  of  Pendleton.  And  in  his  judicial  ca- 
pacity, April,  1810,  "  that  there  are  no  precise  words,  no 
precise  arrangement  of  them,  nor  any  thing,  in  any  degree 
technical,  necessary  to  the  discovery  of  the  testator's  real 
and  legal  intention.  Whenever,  from  the  whole  face,  and 
context  of  the  will,  we  can  collect  the  testator's  intention, 
we  are  bound  to  give  it  effect."     1  Munford,  541. 

So  far  with  respect  to  the  construing  last  wills  and  tes- 
taments, with  a  view  of  explaining  the  difficulty  of  reconcil- 
ing in  all  cases,  the  pursuing  the  strict  letter  of  an  act  of  as- 
sembly, with  what  they  must  obviously  have  intendeds  For 
such  is  the  imperfection  of  language,  that  terms^irQ,  equivocal : 
or  vary  in  their  meaning,  according  to  their  situation  in  a 
sentence.  There  is  also  what  the  grammarians  call  an  ellipsis, 
in  language ;  %vords  used  in  a  preceding  clause,  which  are 
omitted  in  a  second,  and  to  be  understood,  or  brought  for- 
ward, and  supplied.  We  have  instances  of  this  in  last  wills 
and  testaments,  where  the  judges  in  early  times,  not  the  best 


Law  Miscellanies.  521 

grammarians  ;  and  seeing  that  the  meaning  required  it,  and 
not  knowing  how  otherwise  to  reach  it,  have  changed  not  a 
letter  only,  but  a  word,  and  substituted  one  directly  contra- 
ry ;  as,  or,  for  and  ;  and  vice  versa ;  and,  for  or.  That  is 
read  the  will  so.  I  have  no  objection  to  this,  but  as  it  sa- 
vours of  what  is  arbitrary,  and  has  the  appearance  of  doing 
violence  to  language.  It  is  something  like  the  house-wife 
challenging  her  bag  at  the  mill,  P  for  John,  and  R  for  Pat- 
terson. 

Were  judges  to  pursue  the  strict  letter  of  a  statute,  they 
would  have  less  trouble.  For  it  does  not  require  much  un- 
derstanding to  distinguish  A  from  B.  And  this  is  accord" 
ing  to  the  letter. 

I  have  no  idea  that  tautology,  and  multiplying  terms  con- 
tributes to  perspicuity,  and  there  is  danger  when  it  is  un- 
dertaken to  enumerate,  that  something  may  not  be  embra- 
ced as  in  tlie  British  parliament,  where  the  word  person  was 
used  in  the  bill,  and  a  member  moved  an  amendment,  per- 
son, or  persons;  and  another  thinking  to  carry  the  matter 
still  farther,  and  make  sure,  doubly  sure,  made  a  farther  mo- 
tion to  add  person,  or  persons,  he,  she,  or  they.  Another 
in  order  to  shew  the  danger  of  undertaking  te  specify  parti- 
culars, concluded  with  moving  that  it  be  he,  she,  they,  or  it ; 
for  there  might  be  an  hermaphrodite,  in  the  case. 

The  truth  is,  that  hseret  in  cortice,  qui  haeret  in  literse ; 
he  sticks  to  the  bark  who  sticks  to  the  letter ;  and  it  is  only 
by  penetrating  through  the  rind,  to  the  substantial  wood,  that 
the  meaning  of  an  act  can  be  ascertained. 


C  U 


522  Law  Miscellanies. 

Act  of  Assembly,  March  19th,  1810,  prohibiting  in  courts  of 
justice,  the  reading,  or  quoting  Britisli  precedents  subsequent  to 
4th  July,  1776. 

THERE  is  a  British  statute  of  an  old  date,  I  cannot  im- 
mediately turn  to  it;  and  I  cite  from  memory,  prohibiting 
the  judges  from  suffering  themselves  to  be  feasted  when 
they  go  the  circuit.  The  words  are,  "  shall  take  no  gift  of 
any  one,  with  the  exception  of  food,  or  drink,  and  of  this 
very  little."  Under  this  minimum,  or  very  little,  I  presume 
may  be  comprehended  what  was  merely  complimentary,  on 
the  score  of  respect,  or  friendship  ;  as,  in  our  times  the  liba- 
tion of  a  glass  of  wine,  or  a  dish  of  tea  with  the  female  part 
of  the  household  ;  but  no  formal  invitation  to  sup,  or  dine, 
or  any  thing  like  what  might  be  called  an  entertainments 
This  statute  must  have  been  founded  on  some  experience  ihzt 
such  hospitalities  operated  as  a  species  of  briberjs  for  it 
is  classed  with  the  accepting-  gifts  ;  and,  doubtless,  it  is  but 
a  delicate  mode  of  conciliating  a  pre-judgment.  And  hence 
it  is  that  compliments  to  sup,  x>r  dine,  are  usually  given  to 
those  whom  we  mean  to  conciliate,  or  pre-dispose.  It  was 
a  paradoxical  apothegm  of  the  great  Franklin,  that  the  best 
way  to  gain  a  man,  was  to  take  him  by  the  throat,  And^ 
when  Aristippus  was  reproached  by  his  brother  philoso- 
phers, because  he  bent  his  knee  when  he  presented  a  petition 
to  Dionysius,  "  what  can  I  help  it,"  said  he,  "  if  that  man 
has  his  ears  in  his  feet  ?"  In  the  same  manner  it  may  be  said 
by  one  who  has  a  matter  pending  in  court,  and  entertains, 
"  how  can  I  help  it,  if  I  know  that  judge,  to  have  some 
part  of  his  hearing  in  his  throat." 

But  would  it  not  have  been  sufficient  for  this  British 
statute  to  have  prohibited  only  the  accepting  cards  to  sup, 
or  dine,  from  a  suitor  in  court  ?  How  could  a  judge  ascer- 
tain whether  the  person  giving  the  invitation  was  a  suitor, 
not  having  at  hand  the  court  docket  to  evolve,  or  inspect ; 
and  it  would  be  indelicate  to  ask  the  person,  offering  himself 
as  a  host,  '*  pray  sir,  have  you  a  cause  in  court  P"  Besides,  it 
might  be  rather  xvith  a  view  to  a  cause  that  he  Intended  to 


Law  Miscellanies.  523 

bring,  or  expected  to  have  brought  against  him,  than  to  one 
pendlngy  that  the  invitation  was  given.  He  might  think  of 
the  rule  of  prudence,  "  Cast  thy  bread  upon  the  waters,  and 
thou  shah  find  it  after  many  days."  A  cunning  stager  con- 
scious to  himself  of  a  misdemeanor,  or  a  felony  committed, 
fnight  apprehend  an  indictment,  and  be  willing  to  save  his 
bacon  in  one  sense,  at  the  expence  of  it,  in  another.  Or  to 
make  an  oflfering,  not  "  of  a  turtle  dove,  and  two  young  pi- 
geons" to  the  priest ;  but  of  a  duck,  or  a  goose  to  the  judge* 
But,  to  say  nothing  of  a  suitor ^  might  not  something  be 
done  in  that  country  of  roast  beef,  through  the  medium  of  a 
barrister,  or  counsel  in  the  cause,  who  might  find  out  the 
weak  side  of  a  judge ;  whether  he  was  to  be  gained  by 
flattery  to  his  understanding ;  or,  deditus  ventri,  by  food  to 
his  corporal  taste.  The  exordium  of  an  orator,  according  to 
Cicero,  ought  to  be,  "  reddere  auditorem  docilem,  attentum, 
benevolum."  And  were  counsel  to  blame  when  they  had 
discovered,  that  at  least  the  temper  of  a  judge  might  he 
soothed  by  using  the  means  put  in  practice  by  the  hero  of 
the  iEneid  in  his  descent  to  Elysium,  to  soothe  the  centinel 
at  the  out-post  ? 

Melle  soporatam,  et  medisatis  frugibus  offam 

Objicit 

Oiling  the  springs  of  a  machine  makes  It  run  smooth ; 
and  wine  will  put  a  judge  in  good  humor ;  though  the  dan- 
ger may,  be  that  he  will  be  put  into  too  good  a  humor  with 
one  counsel  at  the  expence  of  another  ;  or  at  least  oj"  the  cause 
which  he  supports. 

It  is  not  in  the  natural  order  of  things,  for  men  in  autho- 
rity who  have  discipline  to  support,  to  become  guests  ;  much 
less  who  have  controversies  to  determine  between  man  and 
man.  There  is  a  repugnance  in  a  mind  of  sensibility  in 
deciding  against  your  host^  if  you  can  help  it ;  and  you  will 
at  least  have  a  wish  when  his  cause  comes  to  trial,  that  it 
may  turn  out  good. 

But  the  principal  obligation  is  the  enabling  the  unworthy 
to  derive  character  from  the  station.  For  though  the  judge 
himself  may  be  neither  pleasant  in  his  manners,  nor  respect- 


524  Law  Miscellanies, 

able  for  his  understanding,  yet,  in  contemplation  of  law,  he 
is  supposed  to  have  at  least  legal  knowledge ;  and  his  Station 
carries  with  it  the  majesty  of  the  people  ;  and  it  is  not  pro- 
per that  a  knave  should  have  it  in  his  power  to  say,  I 
had  a  judge,  or  the  judges  to  dine  with  me.  And  how  cap 
judges  on  the  circuit  know,  in  every  case,  what  there  may 
be  against  the  man  that  appears  to  entertain  them. 

But,  for  their  own  sakes,  on  account  of  regimen  and  com- 
tnand  of  time,  if  for  no  other  consideration,  the  judges  will 
find  it  most  advisable  to  decline  invitations.  I  do  not  think, 
therefore,  it  will  be  necessary  to  provide  by  law,  as  in  Eng- 
land, at  an  early  period  they  would  seem  to  have  done. 

But  of  this  enough  ;  I  go  on  to  speak  of  that  which  was 
my  main  object,  the  muzzling^  not  the  mouth,  but  the  mind 
of  a  judge,  in  prescribing  to  him  that  he  shall  not  take  a  nip 
of  information  come  from  whence  it  may.  What  would  we 
think  of  a  British  statute  prohibiting  the  quoting  precedents 
of  our  courts  ?  It  may  be  said,  such  an  act  of  parliament 
would  be  unnecessary  ;  for,  my  lords  the  judges  of  the  Eng- 
lish courts,  are  too  self-sufficient  to  admit  to  be  read  our  de- 
cisions. There  may  be  something  in  that ;  but,  they  would 
be  startled  at  an  act  of  the  legislature  prohibiting  the  reading 
these.  A  liberal  and  enlightened  chief  justice  of  one  of 
their  benches  would  say,  do  we  not  hear  occasionally  read 
to  us,  the  laws  of  other  countries,  or  the  decisions  of  their 
courts  so  far  as  they  can  throw  light  upon  a  matter  before 
us;  and  why  exclude  the  reasonings  of  a  people,  or  the  de- 
cisions on  a  law  that  is  common  to  us  both  ;  nay  even,  why 
exclude  reasonings  on  their  acts  of  Assembly  enacted  since 
our  separation,  which  have  an  analogy  to  our  statutes  made 
since  or  before  P 

I  do  not  know  whether  the  judges  would  permit  a  learn- 
ed Serjeant  to  quote  a  decision  made  in  Pennsylvania,  if 
it  had  a  bearing  on  the  point,  as  shewing  what  our  reason 
was ;  yet,  I  should  think  it  strange  if  they  did  not  permit  it, 
when  it  is  pretty  evident  that  they  read  these  themselves ; 
and  what  is  more,  profit  by  them.  That  they  read,  at  least, 
the   New  York  reports  would  seem  to  appear  from  their 


Law  Miscellanies.  525 

backing  out^  to  use  an  American  phrase,  on  the  doctrine  of 
the  conclusiveness  of  a  sentence  of  a  foreign  court  of  admi- 
ralty. This  doctrine  was  first  shaken  in  the  New  York 
state,  by  a  decision  of  the  high  court  of  errors  and  appeals  ; 
and  followed  up  in  Pennsylvania,  on  my  part,  in  the  supreme 
court  ;*  and  afterwards  in  another  case,  by  JLidge  Cooper  in 
t/ie  high  court  cf  errors  and  appeals.  If  lord  Ellenborough 
had  not  read  the  reasoning  in  these  cases,  or  heard  them 
read,  he  appears  at  least  to  have  adopted  a  greater  liberality 
in  his  way  of  thinking  on  the  subject  than  other  judges,  who 
had  sat  on  the  same  or  other  benches  before  him.  See  1 
Camp.  418.  Park.  495.  6th  edition.  And  1  Camp.  429. 
Park.  619. 

On  these  and  the  like  grounds,  I  incline  to  be  of  opinion 
that  the  act  in  question,  19th  March,  1810,  ought  to  be  re- 
pealed. 

Were  it  not  that  my  sentiments  are  known  as  having  no 
overweening  attachment  to  British  precedents,  save  so  far  as 
they  carry  with  them  72<3/wra/,  or  legal  reason,  I  should  be  more 
embarrassed  in  objecting  to  this  act.  But,  were  it  not  that  I 
should  be  unwilling  to  enter  into  a  contest  with  the  legisla- 
ture, where  public  opinion,  or  prejudice  is  on  their  side,  I 
might  be  disposed  to  question  the  constitutionality  of  this  act. 
It  would  seem  to  be  abridging  the  right  of  the  judiciary,  to 
hear  all  reason  on  a  question  before  them. 

What  is"'t  to  us 

Though  it  were  said  byTrismegistus  ? 

But  if  we  are  to  hear  the  saying  of  a  lord,  years,  or  cen- 
turies ago  ;  and  before  the  4th  July,  1776,  why  not  what 
another  lord  has  said  since^  to  explain  or  contradict  the  adju- 
dication ?     The  fact  is,  early  decisions  were,  many  of  them 

*  I  claim  nothing  but  having  been  the  precursor  of  judge 
Cooper  on  the  same  side  of  the  question ;  and  this  I  have  a 
right  to  claim.  But  his  opinion^  published  in  a  small  octavo,  I 
would  recommend  to  every  American  student,  not  so  much  for 
the  reasoning  and  ideas,  as  for  the  analysis^  and  systematic  corn^ 
prehension  of  the  subject.  It  is  a  model  that  will  deserve  to  be 
adjnired. 


526  Law  Miscellanies. 

narrow;  and  why  <lrink  out  of  the  neck  of  a  gourd,  rather 
than  out  of  an  open  goblet;  more  especially  if  the  fountain 
was  muddy,  out  of  which  the  gourd  was  filled  ;  the  stream 
of  law  in  that  country,  now  runs  more  clear  in  particular 
cases  than  centuries  ago;  and  it  will  always  remain  so,  the 
law  being  an  improvable  science.  I  like  exceedingly  when 
a  dictum  of  a  judge,  or  an  adjudication  of  a  court,  or  tract 
writer  of  a  semi-barbarous  period,  is  cited,  to  have  it  slwwn 
that  a  more  enlightened,  and  liberal  Mansfield;  or  Kenyon, 
or  EUenborough,  has  overruled,  or  scouted  that  doctrine.  It 
is  shewing  from  themselves,  that  they  have  been  wrong ;  and 
why  should  not  counsel  have  this  privilege,  when  old  de- 
cisions are  cited  on  a  point  of  common,  or  statute  law  ? 

To  use  a  phrase,  not  meaning  disrespect  to  the  learned 
lords  of  England,  when  an  old  case  is  cited,  contrary  to  all 
reason,  or  good  sense,  and  a  new  one  can  be  shewn  contrary, 
in  the  modern  decision  of  another  judge,  it  is  like  curing  ac- 
cording to  the  vulgar  phrase,  and  vulgar  notion,  a  bite  in  the 
case  of  madness,  ivith  a  hair  of  the  same  dog. 


On  the  Judiciary  System  of  the  State. 

1  have  said  that  I  consider  this  system  the  first  in  the 
Union.  I  speak  as  to  xh&  foundation  that  has  been  laid  ;  and 
improvements  that  have  so  far  taken  place.  But  some  filling 
up  is  required  to  do  it  justice.  What  is  that  filling  up  ?  I 
shall  not  undertake  to  say  what  would  in  all  things  complete 
the  building.  I  shall  only  go  so  far  as  to  point  out  what  I 
would  conceive  to  be  more  immediately  necessary  to  be  done. 
This  I  do,  not  confident  that  it  will  be  well  taken,  though 
confident  that  it  is  well  intended ;  and  meant  for  the  best. 
And  why  should  I  undertake  to  point  out  what  might  be 
done,  who  am  not  of  the  legislative  body  ;  nor  of  the  mass 
of  the  people,  from  amongst  whom  the  representatives  are 
eligible  ?  But  has  not  the  legislature  a  right  to  the  informa* 
tion,  and  suggestion  of  the  d\^GXtXit  functionaries  in  their  re- 


Law  Miscellanies.  527 

spective  stations  ?  For  every  individual  must  be  supposed, 
to  understand  something  of  that  department  in  which  he  is 
more  particularly  engaged.  I  shall  venture  to  suggest,  there- 
fore, the  expediency  of  what  might  be  done,  in  the  first  in- 
stance, andjat  the  present  time,  in  carrying  on  the  improvement 
of  the  system  ;  though  not  without  fear  that  coming  from  a 
judge,  it  may  defeat  the  object :  for  it  may  be  supposed  that 
those  immediately  concerned  in  the  discharge  of  duties,  will 
be  projecting  something  that  will  suit  their  own  convenience. 
But  as  I  take  it,  this  will  not  appear  to  be  the  case  in  all  the 
improvement  that  I  shall  suggest  at  present ;  I  will  venture 
it  J  and,  it  may  go,  for  as  much  as  it  is  worth.  It  will  re-» 
quire  a  president  or  two  more  of  the  common  pleas  to  be 
added,  and  that  is  all  the  additional  expence  that  my  propo- 
sitions would  involve. 

The  first  is,  a  second  president  of  the  district  court  of 
common  pleas  of  the  city  of  Philadelphia,  to  sit  alternatebj 
with  the  first.  Nine  months  in  the  year  is  a  length  of  sit- 
ting greater  than  any  one  president  can  long  sustain;  and  it 
would  require  a  constant  sitting  of  that  court  to  transact  the 
business  which  comes  before  it.  It  is  a  court  xvhich  gives 
great  satisfaction^  and  ought  to  be  made  perpetual. 

In  the  second  place,  I  would  propose  another  district  of 
the  common  pleas  to  be  added,  in  that  part  of  the  mountain- 
ous country,  where  the  districts  consist  of  more  than  three 
counties^  while  those  of  tlie  less  western,  atid  in  the  level 
country  do  not  consist  of  more  than  three.  It  is  monstrous 
that  the  duty  should  be  so  unequal;  both  as  to  riding,  and  the 
weight  of  business,  while  the  salaries  are  the  same.  Advance 
ef  salary^  or  diminution  of  duty  y  can  alone,  bring  to  an  equa- 
lity, or  something  like  it,  in  this  instance. 

In  the  third  place,  I  would  propose  the  consolidating  the 
two  middle  districts  of  the  supreme  court,  Into  one  at  the 
seat  of  government ;  and  the  judges  to  hold  two  terms  for 
this  district,  at  an  Interval  of  six  months  ;  and  on  the  first 
days  of  each  sitting  to  deliver  opinions  on  cases  which  had 
been  argued  at  the  other  districts  west  of  that,  and  which 
cnses  had   been   holdta   over   inukr  advisemrnf..     Cases  of 


528  Law  Miscellanies. 

difficulty  will  be  argued,  upon  which  it  will  be  impossible  for 
the  judges  to  make  up  their  minds  Avithout  time  to  examine, 
and  reflect ;  and  a  postponement  of  delivering  their  opinions 
on  the  case  for  a  whole  year^  gives  great  delay,  and  is  a 
grievance.  If  a  judgment  is  to  be  reversed,  the  sooner  the 
better  j  that  the  party,  if  a  plaintiff,  may  begin  again,  if  the 
error  appears  to  have  been  in  the  proceedings,  or  the  trial ; 
and  if  the  judgment  is  affrmed,  the  sooner  known,  the  plain- 
tiff can  the  sooner  go  on  to  recover  his  right, 

I  say  nothing  of  taking  away  the  original  jurisdiction  of 
the  supreme  court,  in  the  county  of  Philadelphia,  as  it  has 
been  done,  in  the  other  counties ;  nor  of  what  has  been 
sometimes  suggested,  an  addition  to  the  number  of  the 
judges  of  the  supreme  court,  because  that  might  look  like 
over-stepping  the  limits  proposed  by  myself,  in  saying  no- 
thing that  might  have  the  appearance  of  consulting  my  own 
convenience.  The  taking  away  the  original  jurisdiction  of 
the  supreme  court  in  the  county  of  Philadelphia,  might  les- 
sen my  riding,  or  sitting  somewhat ;  or  the  appointment  of 
an  additional  number,  the  original  jurisdiction  remaining, 
might  contribute  to  lessen,  as  the  thirty-three  weeks  sitting 
alternately,  would,  in  that  case,  be  divided  amongst  more ; 
but  as  to  the  Terms,  the  sitting  there  would  be  the  same. 

Individuals,  and  even  professional  men,  from  our  sister 
states  are  at  a  loss  to  conceive  how  we  can  go  on  without  a 
court  of  chancery.  I  have  referred  them  to  the  history  of 
that  court  in  England,  that  a  necessity  for  it  never  could 
have  existed,  as  a  court  distinct  from  common  law  jurisdic- 
tion, but  for  the  narrowness  of  the  common  law  judges. 
"  Extending  rather  than  narrowing  the  remedial  effects  of 
the  writ  (case)  ;  they  might  have  effectually  answered  all 
the  purposes  of  a  court  of  equity ;  except  that  of  obtaining 
discovery  by  the  oath  of  the  defendant."  They  could  have 
done  that  as  we  do  here,  by  damages  in  actions  on  agree- 
ments for  the  sale  of  lands,  compel,  in  most  cases,  T^specific 
execution. 

It  was  this  contractedness  of  the  minds  of  common  law 
judges,  that  explains  the  maxim,  boni  judici?  est,  ampliare 


Law  Miscellanies.  5^9 

jurisdictionem^  which  some  would  amend  by  saying,  ampli- 
are  justitiam.     But  this  would  be  an  inconsistency;  because 
justice  cannot  be  enlarged  or  diminished,   without   ceasing 
to  be  justice. 

A  court  of  chancery  must  sit  at  some  one  place  in  a  state^ 
and  this  is  irreconcilable  with  the  principle  adopted,  in 
Pennsylvania ;  and  which  ought  to  be  adopted,  of  bringing 
home  justice^  as  much  as  it  is  possible,  to  every  man^s  door- 


Mints  TOWARDS  a  general  law  on  the  subject  of 

WRITS    OF  ERROR. 

IN  England  a  writ  of  error  is  not  grantable  ex  debito  ju5« 
titise,  or  of  right,  in  treason  and  felony.  Application  must 
be  made  to  a  judge  of  the  superior  court,  or  to  the  superior 
court  itself,  to  allow  it ',  which  may,  or  may  not  be  done^ 
according  to  the  idea  of  the  judge,  or  court,  as  to  the  proba- 
bility of  there  being  error.  With  us,  by  act  of  assembly,  13 
April,  1791,  no  writ  or  certiorari,  or  writ  of  error,  shall  be 
available  to  remove  an  indictment,  or  stay  execution  of  the  judg- 
ment,va.  ^cay  criminal  case ;  unless  the  same  shall  ha  specially 
allowed  by  the  supreme  court,  or  one  of  the  justices  thereof, 
upon  sufficient  cause  to  him  shewn  ;  or  shall  have  been  sued 
©ut  with  the  consent  of  the  attorney  general.  Some  time  must 
intervene  before  application  can  be  made  to  a  justice  of  the 
supreme  court ;  or,  to  that  court ;  and  before  the  writ  of  er- 
ror can  be  heard ;  and  in  the  mean  time  the  sentence  must 
go  into  part  execution,  which  is  a  little  like  a  person,  so  far 
as  this  goes,  being  hanged,  or  whipped  first,  as  the  phrase  is, 
and  tried  afterwards.  For  where  there  was  error,  there 
can  not  be  said  in  strictness,  to  have  been  a  trial.  The  ex- 
pence  to  the  county  in  keeping  in  confinement,  until  the  ap^ 
plication  can  be  made  to  a  judge,  or  to  the  court,  and  the 
writ  of  error,  if  allowed,  heard,  is  in  the  way.  But  might 
rot  bail  be  taken  in  the  mean  time,  with  condition  to  surren- 


S30  Law  Miscellanies. 

cler   after  hearing;  this  at  least,  in  case  o/  misdemeanorSy 
and  offences  short  of  felony  P 

A  writ  of  error  lies  where  a  party  is  aggrieved  by  any  er- 
ror in  the  foundation,  proceeding"^  judgment^  br  execution  of 
a  suit.     But  might  it  not  be  provided  that    no  error  shall 
be  assigned  in  the  foundation,  as  for  instance,  want  of  juris- 
diction before  a  Justice;  or  of  a  court,  unless  exception  taken, 
or  pleaded  to  the  Jurisdiction,  at  the  proper  stage  for  taking 
the  exception,   or  entering  the  plea ;    and  the  judgment   of 
the  justice,  or  court  given  expressly  npon  the  point.     The 
same  in  the  case  of  exception  to  proceeding,  judgment,  or 
execution  ?    This  is  an  amendment  which  would  seem  to  be 
absolutely  necessar}',  both   for  the  sake   of  the  justice,  the 
court,  and  the  party.     It  is  not  uncommon   to  have  a  judg- 
ment reversed  from  error  upon  the  face  of  the  proceedings, 
ihough  the  court  below  could,  but  constructively,  be  said  to 
have  passed  upon  that,  in  which  error  is  assigned.     This  is 
a  matter  of  which  the  Judges  of  the  court  beloxv  complain,  and 
have  great  reason  to  complain.     But,  the  court  above   have 
thought,  that,  it  is  competent  only  for  the  legislature  to  make 
an  alteration  of  what  the  judges  of  the  supreme  court  have 
conceived  to  be  the  law,  as  to  this  particular.     It  is  a  matter 
of  surprise  to  me,  that  for  the  sake  of  their  own  reputations, 
the  presidents  of  the  district  courts,  have  not  before  this^ 
suggested  an  alteration  of  the  law  on  this  head.     It  is  un- 
fair that  they  should  be  supposed  to  have  decided  a  point  that 
Tvas  never  made  to  them*     And  yet,   constructively,  they  are 
in  contemplation  of  law,  supposed  to  have  sanctioned  errors, 
which  were  never  noticed  by  the  party,  or  the  counsel.     For 
it  is  the  law,  that,  for  errors  of  form,  or  substance,  appearing 
oniheface  of  the  proceedings,  error  may  be  assigned  after 
the  record  comes  up ;    notwithstanding,   they  had  not  been 
objected  to,  or  noticed  before. 

In  civil  cases,  writs  of  error  are  of  course,  subject  only  to 
the  party  "  making  oath  or  affirmation,  that  the   same  is  not 
intended y^r  delay?"*     This  is  a  temptation  to  perjury,  and  . 
ought  to  be  abolished.     The  oath,  or  affirmation,  is,  almost 
'?/'(;o?/r,9c,  made.     For,  a  very  slight  matter,  will  satisfy  the 


Law  Miscellanies.  531 

conscience,  such  is  human  frailty,  or  perverseness,  uhcre,  in 
a  case  of  money  to  be  paid,  it  is  not  convenient  to  pay.  Ihe 
br'viging  the  money  into  courts  with  the  costs  of  suit,  would 
be  the  true  tfst  of  the  writ  of  error  being  brought  for  the  pur- 
pose of  delny;  or,  with  a  solid  expectation  of  being  able  to  re- 
verse the  judgment.  But  in  the  case,  of  money  brought  into 
court,  it  lies  unproductive  to  both  parties ;  and  it  might  be 
provided  that  the  plaintiff  should  take  it  out  on  entering  into 
a  recognizance,  with  security  to  refund,  in  case  of  a  rever- 
sal of  the  judgment,  under  which  it  was  paid  into  court. 

In  assigning  errors  in  the  charge  of  the  court  brought  up 
by  a  bill  of  exceptions,  to  the  charge;  (for  in  no  other  way 
can  it  answer  any  end  to  bring  it  up ;    because  otherwise  it 
would  come  unaccompanied  with   the  facts  of   the   case,  on 
which  the  law  laid  down  in  it  was  predicated,)  error   is  al- 
leged in  the  reasons  of  the  law- laid  down  ^  though  the  result  of 
the  charge  as  to  the  law  itself  be  correct.     On  a  writ  of  er- 
ror, therefore,  let  it  be  provided,  that  where  the  jury  are  di- 
rected correctly  on  the  point  of  law,  on  which  the  case  turns, 
the  judgment  shall    not  be  reversed,  on  account  of  reasons 
given  in  the  charge  ;    unless  the  law  laid  down,  bearing   on 
the  issue,  was  erroneous.     I   entertain  the  expectation  that 
this  act  calling  upon  judges  to  file  opinions,  will  be  repealed, 
^he  profession  themselves,  at  whose  instance  it  was  brought 
forward,  will  see  the  inutility  of  it.     With  a  view  to  a  bill  of 
exceptions,  questions^  as  formerly  can  be  put  to  the  court,  and 
answers  to  these  can  be  given,  and  incorporated  by  the  coun- 
sel themselves,    when  they    draw  up  the  bill.       That  there 
may  be  no  dispute,  when  they  come  to  draw:  up   the  bill,  let 
the  judge  at  the  instant  put  his  answers  in  writing,  or  express 
them  with  such  deliberation,  that   the  counsel  may  have  the 
opportunity  of  taking  them  down.     But  to  render  it  absolute^ 
h)  necessary  ^ior  a  judge  to  write  any   thing,  is  absurd.     It 
was  no  part  of  the  common  laxv ;  for  even  signing  his  name^ 
was  not  necessary  to  a  bill  of   exceptions.     His  seal  was  suf- 
ficient.    His  report  of  a  case  tried  before  a  judge  of  the  su- 
preme court  at  nisi  /)ri?^5,  might  have  been  meraoriter  ;    and 
his  notes  now,  are  not  for  the  counsel  or  the  party,   but    for 
his  brotht  r  judges  who  sit  at  the  term;  and  nisi  prius,  and 


532  Law  Miscellanies. 

circuit  courts  being  taken  away,  except  in  the  city  of  Phila- 
delphia, notes  are  not  necessary  for  any  purpose,  but  as  the 
judge  chuses  to  take  them.  As  to  presidents  of  districts,  but 
for  this  act  it  would  not  be  necessary  that  they  should  write 
any  thing,  unless  their  names,  in  taking  the  acknowledgment 
of  deeds.     No  man  can  take  a  note  with  more  fidelity^    or 
quickness, than  I  can;  but  I  despise  the  mechanical  drudge- 
ry ;  and  as  it  detracts  from  the  strength  of  thinking,  I  would 
wish  none  of  it  in  a  judge  before  whom  I  was  to  plead.     Let 
him  give  me  his  eye^  and  his  intellect ;   not    with  his  head 
down,  and  his   hand  busy ;    because  I   could  not   drive   my 
words  through  his   scalp  ;  and  it  always  discouraged  me  to 
see  a  bare,  or  a  covered  poll,  presented  like  a  battering-ram, 
while  I  was  endeavouring  to  reach  his  mind  with  my  obser- 
vations.    I  despise  drudgery;  not  that  I  undervalue  mecha- 
nics,   or  mechanism  ;     but^  because  handicraft  labour,  is 
out  of  place  here ;  and  a  Jack  of  all  trades  is  proverbially 
a  bungler.     Though  I  state  this  playfully,  yet  there  is  truth 
in  it ;  I  wish  a  judge  to  be  obliged  to  write  as  little  as  pos- 
sible.    For  the  fact  is,  that  it  rarely  happens  that  one  can 
combine  clerkships  and  the  application  of  the  mental  faculties 
with  the  utmost  force  at  the  same  time.     Persons  that  have 
written  much,  pursuing  the  rapidity  of  their  thoughts^  coi# 
tract  what  the   common  people  call  a  cramped  hand ;  and 
studious  men,  from  their  sedentary  lives  are  nervous  ;  and 
the  nerves  are  affected  by  the  contraction  of  the   fingers  in 
writing ;  this  adds  also  to  the  contractedness  of  the  chiro- 
graphy.     To   oblige  the  judge  to   write  out  the  reasons  of 
his  judgment,  whenever  any  one  may  chuse  to  call  upon  him, 
is  a  novelty  in  the  history  of  juridical  duties.     This  much 
may  suffice  as  to  this  act  which  ought  to  be  repealed,  more 
especially  as   it  falls  heaviest,  in  the  accumulation  of  their 
labours,  upon  the  judges  of  the  inferior  courts,  and  increases 
the  fund  on  which  a  writ  of  error  may  he  brought. 

There  is  a  defect  in  the  law  of  England;  2  Tidd,  1155, 
and  I  take  it,  unless  I  have  overlooked  the  provision,  the 
same  defect  exists  with  us,  "  That  on  a  writ  of  error  by  the 
defendant,  and  a   reversal  of  the  judgment  against  him,  he 


Law  Miscellanies.  533 

Is  not  entitled  to  costs ;"  which  is  unreasonable,  while  the 
plaintiff  in  the  like  situation,  could  claim  costs. 

It  will  not  be  understood  that  I  have  applied  my  mind 
to  consider  all  provisions  that  might  be  in  the  case  of  writs 
of  error;  but  give  such  hints  as  at  present  occur  to  me. 


0/iinion  on  a  curioua  question  of  practice,  made  at  the  term  of 
the  western  circuit,  September,  1803. 

"Robert  Galbraith  and  others  "J 

vs.  S-In  case. 

Judah  Colt,  J 

In  the  circuit  court  of  September,  1803. 

THE  following  state  of  this  case  is  agreed  upon  by  both  par- 
ties, and  the  judgment  of  the  court  prayed  thereon. 

At  the  Allegheny  court  of  quarter  sessions,  of  September, 
1797,  several  bills  of  indictment  for  riots  were  found  against 
James  Lowry  and  others.  Three  of  these  indictments  are  No.  2, 
4,  and  5,  of  that  term.  Judah  Colt,  as  agent  for  the  Pennsylvania 
Population  Company,  was  the  private  prosecutor  of  these  indict- 
ments, and  at  the  said  sessions,  by  the  advice  and  direction  of  the 
court,  he  entered  into  a  stipulation  to  pay  costs,  m  case  of  a  verdict 
for  the  defendants. 

These  indictments  were  continued  from  term  to  term  until 
September  term,  1798,  when  the  defendants  pleaded  not  guilty  to 
all  the  indictments,  and  were  tried  and  convicted  upon  indict- 
ment No.  2. 

After  this  conviction  it  was  agreed  between  the  defendants 
and  the  attorney  for  the  commonwealth,  with  the  consent  of  Judah 
Colt,  the  private  prosecutor,  that  a  nolle  prosequi  should  be  en- 
tered against  defendants  in  the  indictments,  Nos.  4  and  5,  upon 
the  payment  of  costs  by  the  defendants.  This  entry  was  accord 
ingly  made  upon  the  docket,  and  endorsed  upon  the  indictments, 
together  with  an  agreement  by  the  attorney  for  the  common- 
wealth, with  the  consent  of  Judah  Colt,  that  the  recognizance  of 
defendants  in  the  indictment  should  not  be  sued  until  after  the 
next  ensuing  term. 

Tiiebill  of  costs  when  taxed  by  the  clerk  of  the  sessions,  was 
disputed  by  the  Lowreys  as  being  too  high,  and  was  thereupon  re- 


6J4  Law  Miscellanies. 

fcrrcd,  byihcir  consent  and  request,  to  tl;e  president  of  th*  (iiii'<' 
of  quarter  sessions. 

Before  the  president  delivered  his  opinion  tlie  LoAvrcys  re- 
fused to  pay  any  costs,  and  no  recognizance  of  theirs  could  be 
found  upon  which  they  could  be  sued. 

Process  was  issued  by  the  attorney  for  the  state,  to  bring  in  the 
defendants,  upon  indictments,  Nos,  S,  4,  and  5,  of  September  1797, 
and  they  were  accordingly  brought  in  to  answer  at  September, 
1799.  This  process  was  issued  by  the  direction  of  the  attorney 
for  the  state,  without  the  knowledge  or  consent  of  Judah  Colt,  other 
than  his  having  requested  that  the  bills  for  attendance  of  witnesses 
on  part  of  prosecutor  might  be  collected,  and  process  was  issued 
to  compel  Judah  Colt  to  appear  and  give  testimony  on  these  in- 
dictments against  defendants.  And  the  prosecution  was  revised 
as  the  most  efficacious  mode  of  recovering  the  fees  and  prosecu- 
tors bills  due  on  the  judgments. 

On  the  trial  of  the  indictments  No.  4,  and  No.  5,  at  September 
term  1800,  the  defendants  were  acquitted  and  the  costs  taxed  (pro- 
ut  bills  of  costs.) 

These  costs  arc  now  demanded  of  Judah  Colt  upon  his  stipu* 
lation  of  September  term,  1797,  and  he  refuses  to  pay,  conceiving 
himself  discliarged  from  his  stipulation.  The  court  of  quarter 
sessions  have  given  no  opinion  on  this  question,  and  the  plaintiffs 
have  brought  this  suit  to  try  whether  Colt  is  liable  to  pay  the  bills 
as  taxed,  or  any  part  of  them. 

Henry  Baldwin,  Attorney  for  Plaintiffs. 
Thomas  Collins,  Attorney  for  Defendant. 

I  understand  the  first  question  in  this  case  to  be,  whe- 
ther an  appeal  is  sustainable  by  this  court  from  the  opinion 
of  the  circuit  court,  Avhich  was  given  on  a  case  stated  under 
an  agreement  of  which  I  have  not  been  furnished  with  a 
copy  along  with  that  of  the  statement  of  the  case  ;  but  which 
I  understand  to  have  been,  to  submit  to  the  opinion  of  the 
two  judges  then  holding  the  circuit  court,  and  that  opinion 
to  be  conclusive ;  providcrd  that  the  argument  could  be 
heard  by  those  two  judges  from  the  interference  of  other 
business  at  the  time.  In  strictness  then,  I  would  take  it, 
there  not  having  been  time  for  hearing  by  those  two  judges  , 
from  the  interference  of  other  business  at  the  time,  there 
■lyas  ^n  end  tp  the  agrceni'jr.t  j    and  v/uhout  an  accommoda- 


Law  Miscellanies,  S3S 

tion  of  the  agreement  to  a  hearing  In  another  manner,  it  was 
coram  non  judice  and  the  hearing  void.  Much  more  so 
when  a  change  in  the  constitution  of  the  court  gave  the  ad- 
vantage of  but  one  judge  at  a  circuit  court  instead  of  two; 
and  more  especially  w^hen  a  reason  w^hich  might  have  weigh- 
ed, and  it  is  presumable  did  weigh,  in  the  agreement  on  the 
part  of  either  of  the  parties,  was,  that  the  court  being  consti- 
tuted of  but  four  judges,  in  the  case  of  a  reference  to  two, 
there  could  not  be  a  majority  out  of  four  to  reverse  the 
opinion  of  two ;  a  reason  which  it  is  well  known  did  ope- 
rate much  at  the  nisi  prius  courts  to  prevent  appeals  or 
motions  in  bank  from  that  which  we  had  discovered  to  be 
the  sense  of  the  one  half  of  the  court  who  had  already  heard 
the  matter,  considering  such  a  motion  or  appeal  to  be  una- 
vailing ;  so  that  an  agreement  to  acquiesce  in  the  opinion  of 
two  as  conclusive,  even  under  the  constitution  6i  the  cir- 
cuit court,  was  not  giving  up  much.  For  though  the  other 
two  judges  in  bank  might  reverse  the  opinion  of  the  two  cir- 
cuit judges,  yet  the  presumption  was  strong  against  it,  th* 
number  being  equal  in  both  cases,  and  the  presumption  of 
understanding  the  same.  There  is  therefore  a  great  differ- 
ence in  the  agreement  to  submit  to  two  under  the  former 
constitution  of  the  circuit  court,  and  a  submission  to  one 
under  the  change  which  has  taken  place'. 

But  it  may  be  said  the  arguing  the  case  stated  before  the 
single  judge,  by  implication,  carries  with  it  the  agreement 
that  the  opinion  of  the  single  judge,  shall  have  the  effect 
which  the  agreement  contemplated,  which  was  that  of  a  de- 
cision by  two;  an^d  if  such  was  not  the  understanding  of  the 
party  defendant,  it  behooved  him  to  have  liad  the  agreement 
accommodated  to  his  ideas,  by  an  alteration  as  to  that  part 
of  it  which  respects  the  conclusiveness  of  the  effect.  On  the 
contrary,  I  would  take  it,  that  it  behooved  the  party  plaintiff 
to  have  had  an  alteration  made  as  to  the  submission  to  one 
judge,  if  he  meant  to  avail  himself  of  the  conclusiveness  of 
the  opinion  of  one. 

It  may  be  said,  there  is  an  astutia  i>ere  to  dtlVat  tlie 
plaintifi"  in  the  advant-:,^e  he  has  gained  by  the  opinion  of  the 


536  Law  Miscellanies. 

single  judge,  and  to  relieve  the  defendant  from  the  decision 
of  which  he  complains.     It  may  be  so ;    but  may  it  not  be 
justifiable  ?  It  would  seem  to  me ;  as  I  must  acknowledge  it 
does ;    that  the  single  judge   has  erred  in  his  judgment  in 
this  case;  and,  even  on  this  preliminary  question,  it  seems 
to  me,  that  it  is  proper  to  overreach  it  in  the  contemplation 
of  the  mind,  and  to  enquire  what  has  been  the  decision  of 
that  judge.     It  is  allowable  then,  at  least  I  have  done  it,  to 
look  at  the  case  stated,  even  in  determining  the  first  point. 
For  astutia,  in  an  endeavour  to  get  at  justice,  is  allowable ; 
and  to  admit  a  rigorous  or  liberal  construction  of  an  agree- 
ment, with  a  view  to  that  object  I  have  been  disposed  to  do 
so  in  favour  of  the  defendant.  For  it  would  seem  to  me  that 
the  defendant  ought  to  be  considered   as  relieved  from  the 
stipulation  as   to  the   costs   of  the  prosecution  in  question. 
My  memory  does  not  serve  me  with  a  positive  recollection ; 
but  it  seems  to  me,  that  in  the  course  of  my  reading  I  have 
seen  something  which  has  led  me  to  doubt  the  power  of  the 
court  to   impose  the  stipulation;     and   on  principle   there 
would  seem  reason  to  doubt  it.     For  though   in  fact,  in  a 
forcible  entry,  there  is  a  private,  as  well  as  a  public  wrong, 
and   oftentimes  the  injured  party  resorts  to  the  indictment 
merely  with  a  view  to  his  private  wrong,  yet  I  should  be  at 
a  loss  to  conceive,  that  the  power  of  the  court  could  oblige 
him  to  stipulate  for  costs  in  this  more  than  in  any  other  cri- 
minal case  when  the  statutes  have  not  done  it.     If  so  the 
stipulation  would  be  void,  and  on  that  ground  the  defendant 
would  be  relieved.     But  supposing  the  stipulation  legal  and 
binding,  it  respected  an  acquittal  on  trial.     But  here  by  the 
agreement  on  the  part  of  the  commonwealth  with  the  defen- 
dant, the  prosecution  is  arrested  short  of   a  trial ;  a  nolle 
prosequi  is  entered  on  payment  of  costs.     It  is  true  the  pro- 
secutor assents  to  it.     But  nevertheless  it  is  the  agreement 
of  the  attorney  for  the  state  with  the  defendant ;  and  I  would 
take  it,  that  the  agreement  takes  the  case  as  to  costs  out  of 
the  stipulation,  and  puts  it  wholly  on  the  recognizance.     The 
prosecutor,  the  stipulant,  directed  the  proceeding  for  costs .: 
bat  what  could  he  be  supposed  to  mean,  but  that*  the  proceed- 


Law  Miscellanies.  537 

ing  should  be  on  the  recognizance  of  the  defendant;  and 
for  the  purpose  of  costs  only,  and  not  for  the  purpose  of 
trial.  But  no  recognizance  had  been  taken,  as  stated  in  the 
case.  This  was  the  oversight  of  the  officer  of  the  common- 
wealth, and  for  which  the  prosecutor  the  stipulant  is  not 
answerable.  If  the  officer  is  reduced  to  the  necessity  of  re- 
curring to  a  process  to  bring  in  the  body  of  the  defendant, 
and  going  on  to  trial,  from  the  default  of  a  recognizance,  it 
would  not  seem  to  me  reasonable  that  he  should  hold  the 
prosecutor  to  his  stipulation,  who,  in  consequence  of  the 
agreement  of  the  attorney  of  the  state  with  the  defendant, 
had  given  up  the  prosecution. 

It  is  under  these  impressions  that  I  may  be  disposed  to 
give  the  stipulant  the  advantage  of  any  want  of  conformity  to 
the  agreement  on  the  strictest  construction  of  it,  in  order  to  let 
in  a  consideration  of  this  point.  Justice  is  the  great  object  of 
us  all,  and  when  that  does  not  certainly  appear  to  have  been 
attained,  the  mind  is  not  satisfied,  more  especially  if  all  ad- 
vantage has  not  been  had  in  the  hearing  by  such  tribunal,  in 
the  first  or  last  resort,  as  it  may  have  been  in  the  contempla- 
tion of  the  party  to  have  had,  who  thinks  himself  agreed  by 
the  determination. 

It  is  possible  that  on  hearing  the  matter  argued,  I  might 
think  with  the  judge  who  has  given  an  opinion;  and  in  or- 
der to  get  at  this,  if  the  party  to  the  agreement  on  the  one 
side,  will  hold  the  other  to  the  conclusiveness  of  the  effect 
of  the  opinion,  I  v/ould  hold  him  to  the  strictness  of  the 
agreement  as  to  the  tribunal  before  whom  it  was' agreed  to  be 
heard,  and  unless  he  would  consent  to  waiv|e  the  conclusive- 
ness, and  give  the  advantage  of  a  hearing  on  appeal,  I  Avould 
turn  round  to  begin  again,  on  the  case  stated,  or  leave  him 
to  his  action  as  it  was  commenced,  and  the  ordinary  progress 
r)f  the  suit. 

3  Y 


JoS  Law  Miscellanies. 

Opinion  in  the  case  of  lessee  of  Ziebach  v.Morgak. 

THE  following  was  delivered  in  the  case  reported,  3 
Bin.  69.  It  was  a  case  which  had  been»holden  over  for  advise- 
meat,  and  I  had  made  out  my  opinion,  but  from  oversight, 
I  had  omitted  to  deliver  it  to  the  reporters  not  that  it  was 
of  much  moment  to  insert  here,  more  than  to  shew  that  I 
had  considered  the  case ;  and  did  not  merely  concur^  as  it 
stands  in  the  report,  but  delivered  reasons.  There  are  a 
number  of  other  cases,  some  of  them  reported,  and  some  not, 
where  I  made  out  opinions ;  though  at  an  early  period,  I 
was  more  in  the  habit  of  delivering  them,  not  from  written 
notes  :  some  of  them  which  had  been  written  out,  I  did  not 
deliver,  because,  finding  that  we  concurred,  it  was  left  to  the 
chief  justice  J  to  deliver  the  opinion  of  the  court. 
«  Some  of  these  which  I  had  drawn  up,  I  threw  into  the 
fire,  as  having  been  always  averse  to  the  trouble  of  keeping 
papers,  where  it  was  not  absolutely  necessary.  My  notes  in 
other  cases^  I  have  given  to  some  of  the  bar,  or  have  lost. 
To  Mr.  Mountain,  of  Pittsburgh,  I  gave  a  number;  and 
when  on  that  circuit  last  fall,  I  thought  of  enquiring  for  them 
Avith  a  view  to  this  publication,  thinking  to  insert  some.  But 
I  was  unwilling  to  give  him  the  trouble  of  looking  them  up, 
if  he  had  preserved  any  of  them.  Seeing  his  bodily  weak- 
ness, and  knowing  that  the  business  of  the  term  must  at  that 
time  press  upon  him  ;  and  for  which  all  the  strength  that  he 
had,  was  necessary.  In  a  number  of  cases,  I  had  given  the 
opinions  I  had  drawn  up,  to  some  one  or  other  of  the  judg- 
es ;  to  chief  justice  Tilghman,  one  in  a  case  of  the  first  im- 
pression,  Dessebats  v.  Berquier,  which  I  had  drawn  up  with 
some  pains  ;  but  it  was  mislaid,  or  handed  over  by  him  to 
some  other  of  the  judges;  or  it  is  possible  to  myself;  but 
which  I  could  not  find  at  the  time  the  covirt  delivered  their 
opinions,  or  since ;  and  therefore  I  could  only  express  my 
concurrence  with  the  sentiments  they  had  delivered,  at  least 
it  was  not  necessary  to  take  up  time  in  doing  more.  For 
they  were  to  the  same  effect  with  reasons  that  had  occurred 
to  me. 


Law  Miscellanies.  53^ 

There  is  one  note  upon  an  important  question,  the  case 
of  Starrer  v.  Shetz,  which  I  could  wish  to  have  had,  in  order 
to  insert  it  here.  It  was  argued  in  the  high  court  of  errors 
and  appeals,  in  which  court  I  had  taken  a  seat,  to  hear  the 
argument.  But  some  idea  being  expressed,  that  I  had  given 
an  opinion  in  the  court  below  ;  (the  supreme  court)  I  with- 
drew, though  I  had  not  so  understood  it  myself.  The  fact 
is,  it  had  been  argued  before  I  came  upon  the  bench  of  my 
supreme  court ;  but  at  the  delivering  of  an  opinion  on  the 
case  by  that  court,  I  was  on  the  bench,  and  may  have  said 
something  as  approving  of  their  way  of  thinking,  but  did  not 
consider  myself  as  sitting  in  the  case,  but  only  observing  upon 
the  reasons  which  they  had  given.  There  v/as  a  misunder- 
standing in  the  case  some  way,  either  on  my  part,  or  on  that 
of  the  counsel  concerned,  and  I  gave  up  my  own  recollection 
of  the  fact,  and  yielded  to  them.  All  I  know,  is  that  I  had  not 
considered  myself  as  having  given  an  opinion,  &c.  But  having 
withdrawn  from  the  hearing  of  the  cause  in  the  court  of  errors 
and  appeals,  I  made  anote  afterwards, of  what,  as  at  that  time 
advised,  I  should  have  been  disposed  to  have  thought  of  the 
case.  I  gave  to  judge  Smith,  that  note  together  with  his  own 
notes  to  me,  of  the  argument  of  counsel  on  the  former  opi- 
nion, when  heard  in  the  supreme  court.  His  notes  contain- 
ing what  I  probably  had  written,  are  not  now  to  be  found 
amongst  his  papers  ;  and  probably  must  be  in  the  hands  of 
some  gentlemen  of  the  bar.  I  have  not  had  an  opportunity 
©f  enquiring. 

What  is  the  use  of  all  this  ;  it  may  be  said,  the  profes- 
sion can  go  on,  and  justice  be  administered,  and  the  law 
understood  without  a  report  of  your  opinions  ;  but  it  con- 
cerns myself  to  increase  the  evidence  of  my  industry,  and 
attention  to  the  duties  of  my  trust  and  station. 

It  may  be  said  that  there  is  an  inconsistency  with  this, 
in  my  throxving  into  the  Jire  Jtiany  things,  which,  I  acknow- 
ledge I  had  drawn  up  with  some  care.  The  truth  is,  had 
I  expected  that  I  should  have  had  any  opportunity  of  giving 
them  to  the  public,  I  might  have  preserved  some  of  these ; 
but  Mr.  Dallas,  had,  in  a  great  degree,  Avithdrawn  himself 


540  Law  Miscellanies. 

from  reporting  cases,  his  professional  business  occupying 
his  time  ;  and,  this  accumulating  fast  upon  him,  in  the  courts 
of  the  United  States,  from  his  office  as  district  attorney ; 
and,  from  his  great,  and  still  opening  talents.  Mr.  Binney 
had  not  yet  oft'cr^d  himself  as  a  reporter,  and  therefore  not 
seeing  a  prospect  of  publicity  to  my  labours,  I  consigned 
them,  I  was  going  to  say,  to  the  tomb  of  the  Capulets  ;  but, 
that  figure  not  agreeing,  I  will  say,  to  the  funeral  pile  of  the 
Caesars. 

Mr.  James  Mountain,  of  whom  I  have  spoken  in  this 
note,  is,  I  understand,  much  regretted,  even,  by  those  of  the 
profession  not  friendly  to  his  way  of  thinking  on  political 
questions.  He  argued  two  cases  during  the  term,  which 
unquestionably  accelerated  his  dissolution ;  the  exertion  be- 
ing more  than  he  could  bear;  we  may  be  said,  on  that  oc- 
casion, to  have  heard  the  words  of  the  dying-  swan :  he  died 
in  three  days  after  the  Term, 

The  following  are  the  words  of  the  will  on  which  the 
law  point  made  in  this  case  arises:  "  My  wife,  &c.  shall 
continue  to  live  in  the  house  with  her  children  until  the 
term  of  the  lease  is  expired,  and  she  must  observe  the  agree- 
ment which  was  made,  &c.  The  executors  namely  W:  L  : 
M :  and  R.  shall  be  empowered  to  sell  my  land  in,  &c. 
When  my  debts  are paidy  if  any  thing  should  remain^  my  wife 
shall  keep,  &c.  and  my  oldest  son  shall  have  £5  per  advance ; 
and  then  each  child  shall  have  an  equal  share,  and  my  wife 
shall  have  the  third  part,  and  if  my  wife  cannot  bring  up 
and  maintain  the  children  properly,  then  the  executors  shall 
take  the  children  away  and  put  them  out  to  good  people, 
that  they  may  be  brought  up.  And  in  order  that  my  last  will 
and  testament  may  be  executed  I  constitute  as  executors  IF.  L. 
M.  and  /t»." 

The  sale  in  the  case  before  us  has  not  been  by  W.  L.  &c. 
but  by  some  of  them ;  others  having  refused  to  act.  The 
question  then  will  be,  can  the  sale  be  made  by  fewer  than 
the  whole.  Looking  into  the  books  I  have  extracted  some 
authorities  which  I  will  note  btfore  making  any  observations 
•:)f  mv  owij. 


Law  Miscellanies.  5M 

"  It  can  scarcely  be  imagined  that  a  testator  when  he  in- 
trusts his  executors  with  a  power  of  selling  land,  should 
mean  to  have  those  for  whose  benefit  he  directs  the  sale, 
disappointed  by  the  death  of  one  of  the  persons  invested 
with  an  authority',  which  the  survivor  is  equally  capable  of 
executing."     Coke  Lytt.  113.     Hargrave's  note. 

"  Where  a  naked  power  is  vested  in  two  or  more  nomi- 
natini  without  any  reference  to  an  office  in  its  nature  liable 
to  a  survivorship,  as  an  executorship  is,  it  would  be  a  con- 
tradiction to  the  general  rule,  to  allow  the  power  to  survive  : 
but  where  a  power  of  selling  is  given  to  executors,  or  to  per- 
sons nominatim  in  that  character,  it  is  not  wholly  irreconcila- 
ble with  the  rule,  to  deem  a  surviving  executor  a  person 
within  the  description.  For  by  the  death  of  one  executor, 
the  whole  character  of  executors  became  vested  in  the  sur- 
vivor, and  the  power  being  annexed  to  the  executors,  r^tione 
officii,  and  the  office  itself  surviving,  why  should  not  the 
power  annexed  to  it  also  itself  survive,  as  well  as  where  it 
survives  by  reason  of  being  coupled  with  an  interest  ?  But 
Avhether  lord  Coke's  notion  of  the  power  not  surviving,  or 
the  opposite  one  most  conformed  to  strictness  of  law,  is  not 
now  of  any  great  importance,  as  such  a  power  though  ex- 
tinct at  law,  would  certainly  be  enforced  in  equity.  His  dis- 
tinction is  taken  in  case  of  a  devise  that  passes  no  interest, 
or  estate  to  the  executors  ;  but  merely  a  power  or  authority  : 
but,  though  admitted  in  point  of  law,  it  would  not  avail  in 
a  court  of  equity,  as  this  jurisdiction,  notwithstanding  the 
extinction  of  the  power  at  law,  would  compel  the  execution 
of  it,  for  the  sake  of  those  for  whose  benefit  the  power  was 
given."     Idem. 

Powel  on  devises  controverts  the  correctness  of  taking 
no  distinction  between  a  devise  that  executors  shall  sell 
land,  and  devise  of  land  to  executors  »<f?  be  sold,  which  had 
been  doubted  by  Hargrave.  This  on  ground  of  naked  au- 
thority and  of  an  authority  coupled  with  an  interest.  And 
he  points  out  a  case  of  a  bona  fide  purchase  from  the  heir, 
where  a  court  of  equity  would  not  compel  a  surviving  execu- 
tor to  execute  a  sale,  who  had  had  but  a  naked  authority, 


542  Law  Miscellanies. 

v/hereas  they  would  compel  where  it  had  bten  coupled  with 
an  interest  which  others  had  in  the  execution  of  it.  But  he 
admits  that,  *'  take  the  law  to  be  that  all  persons  endowed 
with  a  naked  authority  must  unite  in  the  execution  of  it,  it 
is  with  an  unless  xvhere  the  evident  intent  of  the  testator  ren- 
ders a  contrary  construction  absolutely  necessary."  Powel, 
310. 

"  If  one  make  three  executors  and  devises  lands  to  be 
sold  by  his  executors,  and  one  of  them  die  before  the  time 
of  the  sale,  the  other  two  may  sell ;  because  in  that  case 
the  intent  of  the  testator  is  taken  to  be  that  such  executor 
who  shall  be  alive  at  the  lime  when  the  land  is  to  be  sold, 
shall  sell ;  and  where  this  construction  seems  to  accord 
with  the  words  of  the  will  and  the  intent  of  the  testator*'* 
Idem. 

"'Where  the  devise  ts  to  bring  up  and  educate  children, 
this  is  an  authority  coupled  xvith  an  interest. 

To  pay  debts,  to  perform  legacies,  is  an  authority  cou- 
pled with  an  interest:  an  interest  in  the  executor  by  devise, 
and  not  an  authority  or  confidence  only."     Idem. 

Having  made  the  above  citations,  I  assume  it,  that  a  re- 
fusing or  renouncing  executor,  is  the  same  as  a  defunct  ex- 
ecutor. For  he  is  defunct  quoad  hoc.  I  mean  as  to  acts 
in  which  he  refuses  to  join,  because  he  has  refused  to  take 
the  administration  of  the  will. 

But  it  is  evident  to  me  on  a  view  of  this  will,  that  the 
power  to  sell  is  not  merely  nominatim  to  W.  L.  &c,  as  trustees 
for  the  mere  purpose  of  sale ;  but  in  the  capacity  of  execu- 
tors, ratione  officii,  to  sell.  There  were  other  purposes  for 
which  they  were  constituted  than  the  mere  sale  of  the  land. 
And  what  is  more,  the  authority  in  this  case,  is  not  naked, 
but  coupled  with  an  interest ;  debts  are  to  be  paid ;  remain- 
der after  sale,  if  any  ihing,  to  be  distributed  to  wife,  a  third 
part;  to  each  child,  an  equal  share  ;  if  wife  cannot  bring  up* 
and  maintain  children  properly,  the  executors  to  take  them 
away,  &cc.  In  order  that  my  will  may  be  executed,  I  con- 
stitute as  executors,  &c.  So  that  upon  all  grounds  I  cau 
have  no  doubt  of  the  power  to  sell  in  this  case. 


N 


Law  Miscellanies.  543 

I  add  only  that  I  sanction  so  far  as  the  Tveight  of  my 
opinion  may  go,  the  doctrine,  that,  on  an  ejectment,  we  will 
consider  that  done  which  would  have  been  ordered  to  be 
done  by  a  court  of  chancery ;  and  where  an  executor  has 
sold  who  could  have  been  compelled  by  a  court  of  chancery 
to  sell  fof  the  purposes  of  a  trust,  the  sale  will  be  supported. 
It  is  to  be  presumed  in  this  case  that  the  trusts  could  not 
have  been  executed  without  a  sale  ;  for  the  testator  contem- 
plated the  necessity  of  it  in  directing  a  sale. 

One  observation  more,  and  I  have  done.  I  take  it  that 
where  any  thing  directed  by  the  testator  to  be  done,  cannot 
be  done,  but  by  a  sale,  it  is  strong  evidence  of  his  intent,  that 
such  of  his  executors  shall  sell,  as  remain,  or  who  do  not 
refuse  the  administration.  I  know  no  distinction  between 
a  refusing  or  renouncing^  and  a  defunct  executor  ;  but  this, 
that  an  executor  may  refuse  as  to  the  real  estate,  but  may 
act  as  to  the  personal;  or  after  renouncing  the  living  execu- 
tor, may  be  allowed  to  announce  his  willingness  to  act,  and 
come  in  to  an  agency  in  the  execution  of  the  will,  whereas 
the  defunct,  cannot. 


Respub.  vs.  M'Leak. 

THIS  case  had  come  before  the  court  at  an  early  period  ; 
1801  or  1802.  Chief  justice  Shippen,  Yeates,  Smith,  and 
Brackenridgc,  on  the  bench.  The  court  were  divided  on  the 
question,  which  had  been  argued  at  great  length  and  with 
great  sfbility.  C.  J.  Shippen,  and  Brackenridge,  of  opinion 
that  the  justice  falling  into  a  new  county  could  not  act  by 
virtue  of  his  old  commission;  Yeates,  and  Smith  contra;  so 
that  no  decision  could  take  place.  Chief  justice  Shippen, 
and  justice  Smith,  having  deceased,  left  the  bench  still  equal, 
and  opposed  in  their  sentiments.  But  on  the  appointment 
of  chief  justice  Tilghman,  the  matter  was  re-argued,  and 
the  court's  opinion  delivered.  It  was  by  the  casting  voice  of 
rhit'f  justice  Tilghman,  decided  that  he  could  not  act. 


544>  Law  Miscellanies. 

I  have  not  the  opinions  of  chief  justice  Shippen,  Yeates  or 
Smith,  nor  that  of  chief  justice  Tilghmari,  but  I  give  my  own, 
which  may  serve  to  give  some  idea  of  the  reasoning  on  at 
least  one  side  of  the  argument. 

Opinion. 

M'Lean  the  defendant  was  acting  as  a  justice  of  the 
peace  in  Adams  county.  Rule  to  shew  cause  why  an  infor- 
mation in  the  nature  of  a  writ  de  quo  warranto  shall  not 
issue  against  him. 

Brackenridge  J.  A  county  is  a  corporation^  with  com- 
missioners, treasurer,  coroner,  sheriff,  constables,  justices  of 
the  peace,  judges  of  the  courts,  &c.  It  is  struck  off,  from 
the  state  at  large,  and  may  be,  as  in  this  case,  within  the 
bounds  of  an  old  county ;  but  it  becomes  a  distinct  and  iri- 
dependent  body. 

Can  the  commissioners,  treasurer,  coroner,  sheriff,  &c. 
of  the  old  county,  continue  to  act  within  the  new  ?  Not  un- 
less the  authority  is  specially  saved,  in  the  act  of  incorpora- 
tion of  the  new.  This  has  been  done  in  the  erecting  many 
counties.  It  has  been  done  as  to  certain  officers  in  erecting 
this  county  :  "  The  sheriff,  coroner  and  public  officers  of  the 
county  of  York  shall  continue  to  exercise  the  duties  of  their 
respective  offices,  within  the  county  of  Adams,  until  si- 
milar officers  shall  be  appointed  agreeably  to  law  within  the 
said  county  of  Adams."  4  State  laws,  533.  Is  a  justice  of 
the  peace,  such  an  officer,  as  is  within  the  meaning  of  this  act  ? 
If  so ;  he  is,  at  least,  supersedable,  and  superseded  at  'all 
times,  by  the  elections,  or  appointments  of  others  of  the 
same  description  and  authority,  in  the  ordinary  way,  provi- 
ded by  the  constitution,  and  the  laws  of  the  commonA^ealth. 

But  can  an  officer  of  the  old  county,  the  justice  of  the 
peace  in  question,  falling  as  to  residence  within  the  new, 
act  within  the  new,  independent  of  any  legislative  act  ? 
How  can  he  become  known  to  the  new  ?  There  seems  some 
copula  wanting  to  connect  him  with  it. 

It  may  be  matter  of  authority,  to  consider  what  has  been 
the  legislative  construction  in  the  case  ;  by  implication  we 
have  abundant  evidence. 


Law  Miscellanies.  54^ 

Oar  first  legislative  act  is  that  of  erecting  Lancaster 
county.  By  this  act  it  is  provided,  "  that  the  county  of 
Lancaster  shall  enjoy  all  and  singular  the  jurisdictions,  pow- 
ers, rights,  &;c.  which  any  other  county  doth,  or  may  or 
ought  to  enjoy."  But  nothing  is  said,  specially,  of  the  ap- 
pointment of  the  justices.     1  State  laws,  242. 

The  act  erecting  York  county,  specially  provides  even 
for  the  jurisdiction  of  the  supreme  court,  and  justices  (mean- 
ing county  justices)  shall  be  commissioned  by  the  gover- 
nor.    1  State  laws,  326. 

In  erecting  the  counties  of  Cumberland,  Berks,  North- 
ampton, Bedford,  Northumberland  and  Westmoreland,  it  i;^ 
provided,  in  the  same  words  as  to  the  Supreme  court  and 
as  to  the  justices.  1  State  laws,  328,  352,  562,  607,  and 
663. 

These  acts  were  under  the  proprietary  government. 

In  erecting  the  county  of  Washington,  under  the  consti- 
tution of  September  28th,  1776,  the  jurisdiction  of  the  su- 
preme court  is  preserved,  and  it  is  directed  that  justices 
shall  be  elected  in  the  townships  and  commissioned  by  the 
president  and  council.     1  State  laws,  874. 

In  erecting  the  county  of  Fayette,  provision  is  made,  in 
like  manner,  and  also  for  the  first  time,  it  is  provided  in 
the  act  of  incorporation,  "  that  the  justices  of  the  peace  com- 
missioned at  the  time  of  passing  this  act  and  residing  within 
the  county  of  Fayette,  or  any  three  of  them,  shall  and  may 
hold  courts  of  general  quarter  sessions  of  the  peace  and  ge- 
neral jail  deliver)-,  and  county  courts  for  the  holding  of  pleas, 
and  shall  have  all  and  singular  the  powers,  rights,  jurisdic- 
tions, and  authorities,  to  all  intents  and  purposes,  as  other 
the  justices  of  courts  of  general  quarter  sessions  and  justices 
of  the  county  courts  for  holding  of  pleas,  in  the  other  counties 
may,  can  or  ouglit  to  have  in  their  respective  counties."  2 
State  laws,  155.  It  is  observable,  that  it  is  as  judges  of  courts, 
authority  is  given  them,  not  as  justices  of  the  peace,  general- 
ly, for  the  keeping  of  the  peace  and  the  recovery  of  debts. 
By  the  c  institution  of  1776,  chap.  11,  sect-  26,  the  legisla- 

3  Z 


540  Law   Ml6C£LLAMi.I>. 

tare  may  establish  courts,  and  under  this  power  it  «iay  have 
been,  that  they  undertook  to  establish  judges. 

In  erecting  the  county  of  Franklin,  it  is  provided,  "  that 
the  justices  of  the  then  present  county  of  Cumberljind,  which 
v.'ill  hereafter  be  within  the  said  county  of  Franklin ^  shall  bfe 
justices  of  the  peace  for  the  said  county  until  the  expiration 
of  their  several  ternnis  for  which  they  were  respectively  ap- 
pointed." This  goes  the  whole  length  of  the  power  of  a 
justice  of  the  peace.     2  State  lav/s,  216. 

In  erecting  the  county  of  Montgomery,  power  given  to 
justices  commissioned  in  the  old  to  act  as  judges  in  the  new, 
2  State  laws,  221. 

In  erecting  the  count}-  of  Dauphin,  justices  already  com- 
missioned, are  authorized  to  act  as  judges.  Power  is  not 
given  to  act  as  justices  of  the  peace  generall}-.  2  State  laws, 
254. 

In  erecting  the  county  of  Luzerne,  provision  made  for 
the  electing  and  commissioning  justices.  Nothing  said  re- 
lative to  justices  already  commissioned.     2  State  laws,  466. 

In  erecting  the  county  of  Huntingdon,  the  justices  of  the 
peace  commissioned  at  the  time  of  this  act  and  residing  with- 
in the  bounds  and  limits  of  the  said  county,  shall  be  justices 
of  the  peace  for  the  said  county  during  the  time  for  which 
they  were  so  commissioned.     2  State  laws,  527. 

By  the  act  erecting  Allegheny  county,  provision  is  made 
"  that  justices  now  commissioned  and  within  the  limits  of  the 
new  county  may  hold  courts."     2  State  laws,  595. 

By  an  act  erecting  Mifflin  county,  "justices  commission- 
ed at  the  time  and  residing,  &c.  shall  be  justices  of  the  peace 
for  the  said  (new)  county."     2  State  laws,  71 8. 

By  the  act  erecting  the  county  of  Delaware,  "the  justices 
then  in  commission  are  authorized  to  hold  courts;  and  that 
a// public  officers,  other  than  justices  of  the  peace^&hzW  con- 
tinue to  exercise  the  duties  of  their  respective  offices,  until 
similar  officers  shall  be  appointed.  2  State  laws,  732.  This 
clause  implies  several  things.  1st,  That  a  justice  of  the  peace 
might  be  comprehended  under  the  term  "  public  officers." 
2'Uy,  That  he  could  not  act  without  the  aid  of  the  legislature. 


Law  MiscLLLANi:  s.  o4r 

It  had  been  doubted  and  might  well  be  doubted,  whether 
as  a  justice  of  the  peace  deriving  his  coJintitutional  existence 
from  the  commission  of  the  president  and  council,  he  could  de- 
rive any  extension  of  authority,  from  an  act  of  the  legislature. 
So  far  as  respected  their  authority  as  justices  of  the  peace, 
generally,  this  legislature  excepted  it. 

The  act  of  assembly  enacting  the  county  of  Lycoming,  is 
the  first  act,  erecting  a  county,  after  the  constitution  of  2d 
Sept.  1790.  It  is  provided  that  the  president  of  the  third 
district,  of  which  district  the  said  county  of  Lycoming  is 
hereby  declared  to  be  a  part,  shall  have  like  power,  &c. ; 
but  no  notice  taken  of  associate  judges  that  might  fall  with- 
in it,  nor  justices  of  the  peace.     3  State  laws,  716. 

In  erecting  the  county  of  Wayne,  it  is  provided  "  that, 
the  sheriff,  coroner,  and  other  officers  of  the  county  of  North- 
ampton, other  than  the  justices  of  the  peace^  shall  continue  to 
exercise  the  duties  of  their  respective  offices,  within  the 
county  of  Wayne,  until  similar  officers  shall  be  appointed 
agreeably  to  law  within  the  said  county."  4th  State  laws, 
242.     This  act  is  under  the  constitution  of  2d  Sept.  1790. 

In  the  act  erecting  Centre  county,  the  jurisdiction  of  the 
supreme  court,  as  in  all  the  other  acts  is  extended,  and  that 
of  the  district  president ;  but  no  notice  taken  of  justices  of 
the  peace.     4  State  laws,  542. 

In  erecting  the  last  counties  in  the  state,  those  of  Bea- 
ver, Butler,  Mercer,  Crawford,  Erie,  Warren,  Venango, 
Armstrong,  the  authority  of  the  judges  of  the  supreme 
court,  and  district  president,  is  extended,  but  no  reservation 
of  the  power  or  authority  of  associate  judge^  or  a  justice  of 
the  peace* 

Expressio  unius  exchcsio  est  alterius.  The  question  will 
then  come  to  this,  can  the  justice  of  an  old  county  act  in 
the  new,  without  the  reservation  of  their  authority,  by  the 
legislature,  in  the  incorporating  act  ?  How  can  he  be  known 
to  the  new  county  ?  Can  the  justice  of  York  county,  in  his 
commission,  begin  his  precept  "  Adams  county,  scilicet?" 
In  this  case  he  might  act  in  bolh  counties.     In  th?  old  coun- 


548  Law  Miscellanies. 

ty  by  the  authority  of  his  commission  and  in  the  new  by  vir- 
tue of  his  residence. 

But  is  not  his  commission  during  good  behaviour;  and 
can  the  legishiture,  by  erecting  a  new  county,  in  fact,  abol- 
ish it  ?  It  does  not  affect  his  commission.  It  abridges  or 
takes  away  the  sphere  of  action  only.  His  commission  was 
taken,  subject  to  the  eventual  sub-division  of  the  county:  a 
power,  which  the  legislature  has  and  must  exercise.  And, 
I  take  it,  there  is  no  privation  of  right  in  the  case.  And, 
that  independent  of  the  aid  of  the  legislature,  to  say  the  least 
of  it,  a  justice  acting  in  one  county  under  colour  of  a  com- 
mission in  another,  is  a  trespassor. 

The  strongest  thing  that  occurs  to  me  to  be  said  to  the 
contrary,  is  the  term  "  public  officers,"  in  the  act  for  erecting 
the  county  of  Adams.  "The  sheriff,  coroner,  and  public 
officers  of  the  county  of  York,  shall  continue  to  exercise  the 
duties  of  their  respective  offices  within  the  county  of  Adams, 
until  similar  officers  shall  be  appointed  agreeably  to  law, 
within  the  said  county  of  Adams." 

In  the  acts  for  erecting  the  counties  of  Delaware  and 
Wayne,  there  is  the  like  provision  with  an  exception  "  as  to 
justices  of  the  peace,"  which  exception,  I  take  to  be  expla- 
natory and  not  implicatory,  that  under  the  term,  "  public 
officers,"  justices  of  the  peace  could  be  comprehended.  It 
is  as  much  as  to  say,  by  public  officers  we  do  not  mean  jus- 
tices of  the  peace.  Independent  of  the  explanation,  it  must 
have  been  evident,  as  in  the  case  before  us,  that  the  legis- 
lature could  not  mean  these.  The  reservation  of  authority 
is  in  favour  of  "  public  officers,"  until  similar^  shall  be  ap- 
pointed. The  provision,  therefore,  must  respect  officers, 
supersedable  by  the  appointment  of  similar.  But  justices 
of  the  peace,  hold  their  commissions,  during  good  behaviour, 
and  are  not  supersedable  by  the  appointment  of  similar. 
Under  the  term,  "  public  officers,"  therefore,  I  take  it,  jus- 
tices of  the  peace  are  not  comprehended.  There  being  no 
legislative  act  in  conservation  of  their  authority  and  exten- 
sion of  it  to.  the  new  county,  it  can  be  known  only  to  the  old. 


Law  Miscellanies.  549 

The  argument  comes  to  this,  that  the  commission  of  the 
justice  for  the  old  county  does  not  enure  for  the  use  of  the 
new,  unless  there  is  a  saving  of  his  jurisdiction  in  the  erec- 
tion of  the  new,  that  is,  the  new  county  erected  subject  to  the 
jurisdiction,  if  this  could  be  done.  It  does  not  lie  upon  me 
to  say  that  it  could.  But,  a  fortiori,  it  cannot  be  without. 
And  in  this  case  there  is  no  saving,  but  the  new  county  laid 
out  without  respect  to  the  jurisdiction  of  the  justice.  He 
may  remain  a  justice  of  the  old  county,  therefore,  and  may 
withdraw  within  it,  and  act,  but  has  no  connection  with  the 
new.  He  is  not  known  to  it  de  facto  ;  nor  by  operation  of 
law,  nor  by  legislative  exception  or  recognition,  or  new  com- 
mission from  the  governor  by  virtue  of  his  signature  to 
a  law,  directly,  or  by  implication,  authorizing  them  to  act, 
if  the  signature  could  be  supposed  to  have  that  effect,  which 
it  is  not  necessary  for  me  to  say  that  it  has,  but  certainly 
without  it  there  cannot  be  authority  for  an  officer  dismem- 
bered from  an  old  countv  to  act  in  a  new. 


On  the  granting  new  trials. 

MY  mind  had  got  a  set  against  granting  new  trials,  and 
this  on  two  grounds. 

1.  Appeals  from  the  circuit  courts  on  motions  for  a  new 
trial  which  had  become  pretty  x\Q7!ir\y  a  matter  of  course ; 
and  trials  in  the  first  instance,  passed  for  nothing ;  at  least 
for  very  little.  I  saw  that  in  the  nature  of  things  we  could 
not  go  on,  so  as  to  give  satisfaction  to  the  country.  In  the 
2d  place  also  I  was  impressed  with  what  I  thought  a  too  great 
facility  with  the  court,  in  sustaining  of  this  kind  and  grant- 
ing new  trials  contrary  to  the  sense  of  juries  on  matters  of 
fact^  on  the  ground  of  the  verdicts  being  agamst  evidence. 
This  more  particularly  in  some  cases  which  had  occured  in 
the  western  district  on  the  subject  of  what  are  called  \m- 
provement  rights.  It  was  under  this  impression  that  I  deli- 
vered the  following  in  the  case  of  Laugblin  v.  Maybury,  at 


550  Law  ?Jiscf.llanif.s. 

the  sittings  in  term,  for  the  western  district,  Sept.  1807. 
I  will  not  say  that  these  sentiments  delivered  here,  or  ex- 
pressed to  the  same  effect  elsewhere,  contributed  to  have  the 
circuit  courts  abolished;  hin  this  soon  afterwards  took 
place. 

I  have  been  led  to  consider  a  little  the  orig-inaud  nature 
of  granting  new  trials.  It  succeeded  the  writ  of  attaint : 
This    writ  was   founded   on   an  allegation  oi perjury ;  (a) 

(a)  St.  Westm.  1.  3.  Ed.  I.  c.  38.  An  attaint  shall  be  granted 
in  a  fee  of  land. 

For  as  much  as  certain  people  of  this  realm,  doubt  very  little 
to  make  a  false  oath,  which  they  ought  not  to  do,  whereby  mucli 
people  are  disinherited,  and  lose  their  right ;  it  is  provided,  that 
the  king  of  his  office,  shall  from  henceforth  grant  attaints,  upon  in- 
quests in  plea  of  land,  or  of  freehold,  or  of  any  thing  touching  free- 
hold, when  it  shall  seem  to  him  necessary. 

This  statute  is  in  affirmance  of  the  common  law.  2d,  Inst.  236. 
But  though  an  attaint,  did  lie  upon  a  false  verdict  before  this,  yet 
because  in  plea  real,  remedy  of  a  higher  nature,  the  king  some- 
times refused  to  grant  it. 

Brief  of  conviction,  old  name  for  writ  of  attaint.  Stat,  of 
Marl.  c.  14. 

The  witnesses  named  in  the  deed,  should  be  joined  with  the  in- 
quest. 

But  if  they,  of  their  own  head  will  say,  that  it  is  disseizin,  their 
verdict  shall  be  admitted  at  their  own  peril. 

13.  Ed.  I.  c.  30.  That  the  justices  assigned  to  take  assizes, 
shall  not  compel  jurors  to  say  precisely,  whether  it  be  disseizin 
or  not,  so  that  they  do  show  the  truth  of  the  deed,  and  require  aid 
of  the  justices. 

By  Statute,  '.  4  of  Ed.  II.  distress  is  given  in  case  of  default  of 
j  ury  of  attaint  to  bring  them. 

1  Ed.  III.  c.  6.  It  is  provided  that  for  the  great  mischiefs,  da- 
mage and  destruction  that  hath  happened  to  divers  persons,  by 
the  false  oaths  of  jurors,  in  writ  of  trespass,  from  henceforth  writ 
of  attaint  shall  be  grant  d,  as  well  upon  the  principal  as  upon  the 
damages,  and  the  chancellor  shall  grant  without  speaking  to  the 
king. 

34  Ed.  III.  c.  7.  Here  ii  is  av.'ardcd  against  the  falsehood  (A' 
jurors,  to  the  poor  without  line. 


Law  Miscellanies'.  551 

and  this    allegation  was  founded  on  express  proof,  or  on  a 
presumption  of  corruption  in  the  jury,  by  the  party.     Hence 
at  common  law  where  the  writ  must  be  against  the   whole 
jury,  the  defendants  could  not  have  been  fewer  than  thirteen. 
This  appears  from  the  recital  in  the  statute  of  15  Hen.  VI. 
The  presumption  of  corruption  in  the  jury  by  the  party, 
where  it  was   matter    of  presumption,  and   not  of  express 
proof,  must  have  been  draivnfrom  the  glaring  injustice  of  the 
verdict.    That  it  must  have  been  a  case  of  manifest  wrongs  will 
appear,  from  the  greatness  of  the  punishment  on  conviction. 
This  wrong  could  more  easily  appear,  when  the  matter  in  is- 
sue to  the  jury  was  simple,  as  at  an  early  period  it  was  in 
all   cases.     As   questions    became    more  complicated,    the 
Avrong  could  not  always  so  manifestly  appear  ;  and  hence  the 
presumption  of  corruption^  did  not  so  necessarily  arise.     The 
punishment  of  course,  became  disproportioned  tO' the  evi- 
dence ;     conviction  did  not   follow,  and   the  attaint   ceased 
to  be  a  remedy.     It  was  attempted  to  be  helped  out  by  sta- 
tute, reducing  the  punishment:  yet  reciting  in  all  cases,  the 
reason  and  ground  of  the  writ,  to  be  that  of  corruption  by 
the  party^  and  perjury  in  the  jurors.     But  the  questions  sub- 
mitted to  a  jury  becoming  every  day  still  more  complicated 
in   evidence,  and  intricate  in  law,  from  the  removal  of  re- 
straints in   the  alienation,  of  real  estate  ;  or  from  the  rela- 
tions   and  transactions  of  a  more  improved  state  of  society, 
the  unreasonableness  continued  more  and  more  to  be  felt,  ol 

9  Rich.  11.  c.  3.  Attaint  given  upon  a  false  oath,  and  also  writ 
of  error  on  the  judgment. 

11  Hen.  VI.  Complaint  of  the  great  damage  and  disherison 
tliat  cometh  by  the  usual  perjuries  of  jurors,  the  which  perjury- 
doth  abound  and  increase  more  than  it  was  wont,  for  the  great  gifts 
that  such  jurors  take  of  the  parties,  kc.  costs  and  damages  given 
on  conviction. 

15  Hen.  VI.     Great  perjury  which  horribly  continueth,  See. 
1 1  Hen.  VII.  c.  21.     Whereas  perjury  is  much  and  customary 
"used  among  such  persons  as  pass  upon  issues.  Sec. 

23  Hen.  VIII.  c.  3.  Att.  v.  persons  giving,  Sec.  and  v.  party. 
Sec.  20/.  5s.  \  to  king  ^  to  party,  See.  fine  and  ransom  by  the  discre- 
'ion  of  tiie  justices,  before  llu:  fulso  sacrament  shall  be  found. 


552.  Law  MiscELLANrcs. 

considering  that  as  a  crime  which  might  be  no  more  than  a 
mistake :  the  writ  of  attaint  with  all  the  softening  of  statutes 
in  the  penal  consequences  of  conviction,  ceased  to  be  a  reme- 
dy ;  for  no  conviction  would  follow ;  the  feelings  of  the- 
heart  and  the  reason  of  mankind  revolted  against  it.  It  is  now 
a  mere  tiame  ;  and  the  inference  of  perjury  has  ceased  to  be 
drawn,  even  in  a  case  of  glaring  injustice;  htcznst  defect  of 
intellect^  or  of  attention^  in  the  course  of  a  long  examination, 
©r  pre-conceived,  and  imperceptible  bias,  may  be  sufficient  to 
account  for  it ;  and  I  take  notice  of  this  early  mode  of  ques- 
tioning the  verdict  of  the  jury,  only  with  a  view  to  show  that 
originally  it  could  not  be  questioned  upon  slight  grounds. 

In  place  of  the  writ  of  attaint  which  was  now  disused, 
recourse  would  seem  to  have  been  had  in  extreme  cases  to 
the  court  of  chancery,  where,  under  a  consideration  of  the 
circumstances  of  the  case,  neru  trials  were  directed:  this 
led  to  the  courts  of  law  themselves  entertaining  motions  for 
new  trials.  Motions  of  this  nature,  had  been  always  enter- 
tained on  the  ground  of  ?nishehaviour  of  the  jurors  or  par- 
ties ;  or  zrregidarity  in  the  finding,  or  delivery  of  the  ver- 
dict ;  and  the  reason  why  we  do  not  hear  more  of  these  mo- 
tions at  an  early  period,  is  because  "the  old  report  books 
do  not  give  any  accounts  of  the  determinations  made  by  the 
court  upon  motions."  1  Bur.  394.  In  Stade's  case.  Style, 
138.  which  is  our  first  on  the  subject  oi  granting  new  tri- 
als^ it  was  moved  that  judgment  be  stayed  upon  a  certificate 
of  the  judge,  that  the  verdict  had  passed  aganist  his  opinion; 
and  that  there  might  be  a  new  trial;  for  that  it  had  been  done 
theretofore  in  like  cases.  But  Rolle,  (chief  justice  of  the 
king's  bench)  said  "that  it  ought  not  to  be  stayed,  though 
it  have  been  done  in  the  common  pleas  j  for  that  it  was  too 
arbitrary  for  them  to  do  it.^^ 

Nevertheless,  (though,  at  first,  with  great  strictness)  the 
practice  of  the  common  pleas  would  seem  to  have  prevailed  ; 
"  and  of  late  years,"  says  lord  Mansfield,  1  Bur.  395,  "  the 
courts  of  law  have  gone  more  liberally  into  the  granting  new 
trials  ;  and  not  only  after  trials  at  nisi  prius,  but  also  after 
trials  at  har,  as  readily  as  after  trials  at  nisi  prius  ;  or  indeed 


Law  Miscellanies.  553 

rather  more  so,  as  the  latter  must  be  done  upon  what  could 
have  actually  and  personally  appeared  to  a  single  judge  only, 
whereas  the  former  is  grounded  upon  what  must  have  mani- 
festly and  fully  appeared  to  the  whole  court."  As  a  reason 
for  granting  new  trials  he  further  observes,  "  that  as  most 
general  verdicts  include  legal  consequences^  as  well  as  propo- 
sitions of  fact  ;  in  drawing  these  consequences,  the  jury 
may  mistake,  and  infer  directly  contrary  to  law."  This  ivas 
the  beginning  of  his  doctrine,  which  led  to  the  rcidikmg  pro- 
positions offact^  in  some  cases,  legal  consequeiices ;  and  final- 
ly to  the  exclusion  of  the  jury  in  some  instances,  fronv  the 
province  of  drawing  legal  consequences  at  all.  I  impute  it 
to  his  introduction,  that  in  subsequent  practice,  more  liber- 
ty hath  been  taken  with  the  verdicts  of  juries,  than,  it  would 
seem  to  me,  principle  would  warrant.  It  became  fashion- 
able to  allege,  and  indeed  tracts  (Eunomus,  Sec.)  have  been 
written  to  prove,  that  the  juries  were,  in  no  case,  judges  of 
the  law;  that  if  they  did  not  determine  the  law,  it  was  be- 
cause, on  a  general  issue  it  was  incideiital  to  the  finding  the 
fact,  and  involved  with  it ;  that  the  courts  had  not  only  dis- 
cretionary power,  but  were  bound  to  control  the  juries  in 
their  verdicts  ;  that  if  juries  were  to  give  an  hundred  ver- 
dicts against  what  the  judges  took  to  be  law,  new  trials 
should  be  granted ;  for  juries  ought  not  to  be  considered 
as  having  even  a  concurrent  right  to  judge  of  law,  but,  as  di- 
rected by  the  court :  that  the  direction  of  the  court  was  the 
only  evidence  they  could  have  of  law  ;  the  only  speculum 
through  which  they  could  look  at  it. 

On  this  I  observe,  that,  in  every  general  verdict,  two 
things  must  be  involved,  theyiac^  and  the  conclusion  from  the 
fact.  Hence  it  cannot  be  that  the  jury  are  judges  of  law. 
Whence  then  the  ino.Kim^  ad  questionem  juris,  ^ic.fCbJ   The 

(b)  That  decantatum  in  our  books  (as  my  lord  Vaughan  calls  it) 
Ad  questioncm  facti,  Ik.c.  is  true ;  for  if  it  be  demanded,  what  is 
the  fact?  The  judge  cannot  enter  it.  If  it  he  asked,  what  the  law 
is  In  that  case  ?  The  jury  cannot  answer  it.  But  upon  the  general 
issue,  if  the  jury  be  asked  the  question,  guilty  or  not?  Which  ia- 
'!':'■  ■    '■  ••  '•••'.  ♦''.'••■' •csolvc  both  law  and  fact  \n  :",;  ■  -  ■'•  -  r^u'dtv 

■i  A 


554  Law  Miscellanies. 

maxim  means,  that  where  the  legal  conclusion  can  he  separa- 
ted from  the  fact ^  it  shall  be  drawn  by  the  court.  This  caa 
be  done  only  by  the  pleadings,  in  the  course  of  which,  the 
facts  are  admitted,  and  the  conclusion  alone  remains  to  be 
drawn. 

In  drawing  the  conclusion,  the  mind  thinks  of  some  ge- 
neral principle  under  which  the  fact  may  come;  and  in  this 
operation  of  the  mind,  the  court  must  necessarily  travel  into 

ornot  guilty.  So  as  thouf^h  they  answer  not  singly  to  the  ques- 
tion, what  is  the  lav/  ?  Yet  they  determine  the  law  in  all  matters 
where  issue  is  johied  and  tried,  but  "where  the  verdict  is  special. 
Rut  in  such  cases  the  judge  of  himself  cannot  answer  or  deter- 
mine on  the  particular  of  the  fact,  but  must  leave  it  to  the  jury', 
with  whom  let  it  rest  and  continue  forever,  as  the  best  kind  of  trial 
in  the  world  for  finding  out  the  truth ;  md  the  greatest  safety  of 
the  just  prerogatives  of  the  crown,  and  the  just  liberties  of  the 
subject  ;  and  he  which  desires  more  for  either  of  them  is  an  enemy 
to  both.  If  the  court  might  charge  the  jury  to  find  for  the  defen- 
dant;  because,  though  the  jury  will  generally  respect  the  senti- 
ments of  the  court  on  points  of  law,  they  are  not  bound  to  return 
a  verdict  conformably  to  theirs.     Per.  judge  Iredell.  3  Dal.  33. 

It  is  the  peculiar  province  of  the  jury  to  infer  facts  from  the 
evidence.     Gushing  justice,  3  Dal.  33. 

On  questions  of  fact,  it  is  the  province  of  the  jury;  on  ques- 
tions of  law,  it  is  the  province  of  the  court  to  decide.  But,  it  must 
be  observed,  that  by  the  same  law  which  recognizes  this  reasona- 
ble distribution  of  jurisdiction,  the  jury  have  nevertheless  a  right 
to  take  upon  themselves  to  judge  of  both,  and  to  determine  the 
law  as  well  as  the  fact  in  controversy.  On  this  and  on  every  other 
occasion,  however,  we  have  no  doubt  you  will  pay  that  respect 
which  is  due  to  the  opinion  of  the  court;  for  as  on  the  one  hand  it 
is  presumod,that  juries  are  the  best  judges  offact,  itis  onthdother 
hand  presumable  that  the  court  are  the  best  judges  of  law.  Bui; 
slill  f^olh  objects  are  lanvfully  vjithin  your  fionver  of  decision.  Sup. 
C  United  States,  Jay,  Chief  justice  ;  3  Dal.  4. 

Can  it  then  be  the  right  of  the  court  to  set  aside  a  verdict  mc^t  - 
finitely  ?  It  will  be  to  say,  youmay  determine  the  law;  but  your  de- 
termining is  nothuig.  Yet  this  must  be  the  result  of  the  doctrine 
of  an  arbitrary  poiver  in  the  court  to  set  aside  a  verdict  on  ih^ 
ground  of  being  against  law. 


Law  i\Iisc£LLANir.s.  555 

die  fact  from  which  the  conclusion  is  drawn.  They  cannot 
but,  in  the  first  instance,  make  an  inference  from  the  evidence 
of  what  the  fact  ia  the  case  is.  It  does  not  follow,  therefore, 
that  it  is  only  matter  of  law  of  which  the  courts  judge  in 
granting  a  new  trial.  In  every  case,  on  a  general  verdict, 
they  must  judge  of  the  fact  first,  fc)  Hence  the  imperfection 
of  their  judgment,  in  judging  of  the  justice  of  the  verdict. 
And  it  follows,  that  they  are  not  bound,  and  cannot  be  justi- 
fied in  granting  new  trials  against  the  sense  of  successive  ver- 
dicts. 

Where  a  mind  has  the  faculty  of  reasoning,  and  that  fa- 
culty is  strengthened  by  the  exercise  of  reasoning,  as  is  pre- 
sumed to  be  the  case  with  a  judge,  great  power  is  acquired 
in  separating,  and  comparing  ideas;  and  where  a  knowledge 
of  general  rules  enables  to  determine  under  what  rule  the 
facts  of  a  case  come,  we  approach  the  nearer  to  something 
like  certainty  :  yet  such  is  the  diversity  of  transactions,  that 
the  application  of  a  general  rule  in  all  cases,  would  work  in- 
justice. CdJ  How  then  can  a  judge  know,  or  undertake  to 
say  with  certainty  that,  where  a  jury  departs  from  what  he 
would  call  a  general  rule  ;  there  is  not  something  in  the  na- 
ture of  an  exception  in  the  case,  which  attaches  the  feelings 
of  the  heart,  and  forces  a  verdict  contrary  to  the  direction 
of  the  court  who  apply  the  general  rule.  For  this  reason 
a  verdict  of  a  jury  ought  not  lightly  to  be  questioned^  even 
though  it  has  gone  against  the  opinion  of  a  judge. 

(c)  Co.  Lit.  sec.  368.  Also  in  such  case  where  the  inquest  may 
give  their  verdict  at  large,  if  they  will  take  upon  them  the  know- 
ledge of  the  law  upon  the  matter,  they  may  give  their  verdict  ge- 
nerally, as  is  put  in  their  charge  ;  as  in  the  case  aforesaid  they  may 
well  say  that  the  lessor  did  not  seize  the  le&see  if  they  will,  &c. 

(d)  There  is  an  excess  of  discrimination  in  investigating  the 
qualities  of  tilings,  which  in  legal  as  well  as  other  objects  of  critical 
disquisition,  tends  only  to  draw  out  a  question  to  infinity.  That 
the  foundation  of  every  rule  must  of  necessity  be  imperfect,  and 
that  it  is  impossible  to  bound  the  scope  of  its  application  to  a  ma- 
thematical point.  Rob.  on  Frauds,  cites  2  Atk.  41,  42. 


556  Law  Miscellanies. 

It  is  Avith  less  confidence  that  a  court  ought  to  advance 
in  granting  a  new  trial  on  the  ground  of  being  agohist  evi- 
dence. "  And  one  reason  for  this  (which  can  never  be  an- 
swered) is,  that  the  judge  cannot  fully  know  upon  what  evi- 
dence the  jury  gave  their  verdict,  for  they  may  have  other 
evidence  than  what  is  shewed  in  court;"  Tri.  Per  pais,  274. 
That  is  to  say,  the  impressions  of  a  jury  of  what  they  them- 
selves know  of  the  parties,  or  witnesses  ;  or -what  is  collected 
from  the  manner  in  xvhich  the  testimony  is  given^  cannot  be 
communicated,  and  makes  no  part  of  the  evidence  before  the 
judge.  To  say  that  the  evidence  therefore,  in  the  language 
of  judge  Foster,  1  Bur.  397,  greatly  preponderates  against 
the  verdict,  is  a  matter  which  in  ro  common  case  can  be 
done.  I  am  therefore  not  disposed  to  think  that  in  every 
case,  "  Where  there  is  a  reasonable  doubt,"  (which  is  the  ex- 
pression of  Lord  Mansfield,)  we  are  justifiable  in  setting 
aside  a  verdict. 

The  granting  a  new  trial  must  involve  the  idea,  that  the 
court  so  exercising  the  power  have  the  evidence  all  before  them^ 
from  which  the  fact  was  inferred  by  the  jury.  Unless  there- 
fore in  the  case  of  a  judge  before  whom  the  evidence  ivas 
given^  there  cannot  be  the  same  evidence  that  was  given 
to  the  jury.  For  though  the  whole  be  taken  down  by  the 
notes  of  the  judge,  literatim  as  to  written  evidence,  and 
verbatim  as  to  the  oral  testimony,  yet  the  impression  cannot 
be  communicated.  For  "  as  much  may  be  frequently  col- 
lected from  the  manner  in  which  the  evidence  is  delivered 

* 

as  from  the  matter  of  it."     3  Black.  Z7Z. 

"  The  law's  delay"  is  proverbial;  it  is  enumerated  by 
the  poet  amongst  the  evils  of  life.  It  furnishes  an  argu- 
ment against  the  turning  the  successful  party  round  to  ano- 
ther trial.  Nor  is  it  him  that  it  delays  only,  but  other  suit- 
ors. There  is  greater  delay  in  this  state,  from  the  granting 
new  trials,  than  under  the  judiciary  system  of  that  country 
from  whence  we  derive  the  practice.  There,  the  four  terms 
occur  every  year,  to  which  the  motion  for  a  new  trial  can 
be  made,  and  the  cause  may  go  to  trial  at  the  sittings  after 
term ;  or  at  a  nisi   prius  court,  allowing  only  reasonable 


Law  Miscellanies.  557 

time  for  the  commission  to  issue,   and  the  jury  to  be  sum- 
moned ;   and  the  new  verdict  may  be  had  in  three  months. 
Here,   so  far  as  respects  the  nisi  prius,  the  delay  of  a  new 
trial,  ordered  at  March  term,  must  be  until  December,  and 
in  all  the  circuit  courts,  it  cannot  be   less  than  a  year.     So 
that  the  delay  of  judgment  and   execution,  independent  of 
the  merits,  is  of  itself  an  object  for  a  motion  for  a  new  trial. 
Hence  it  is  that  in  the  circuit  courts  the    motion  for  a  new 
trial,  where  the  verdict  is  for  the  plaintiff,  is  a  thing-  ofcourse^ 
an  appeal  being  given  from  the  judge  refusing  a  new  trial, 
and  the  delay  of  course  obtained.  It  being  thus  a  thing  con- 
templated by  the  judge  before  whom  thi;  cause  comes  to  be 
tried,  that  a  motion  for  a  new  trial    will  be  made,  he  is  led 
to  delay  the  trial  by  taking  down  the  written  evidence  at  great 
length,  and  to  '  chronicle  the  small  beer'  of  the  testimony  ;* 
endeavouring  to  reach  the  whole  body  of  the  evidence  ;  so 
that  the  time  allotted  for  the  circuit  is  taken  up  with  some- 
times little  more  than  a  single  cause  ;  and  when  a  new  trial 
is  gi-anted,  the  judge  who  comes  the   next  year,  has   the 
same  cause  to  occupy   his  chirography,  and  prepare  for  the 
motion  that  is  to  be  made  again.     This  may  be  said  to  be 
in  some  degree  the  fault  of  the  system  ;  but  the  court  must 
take  the  system  as  it  is,  and  in  matters  of  practice  must  look 
to  it ;  and  the  reason  ab  inconveniente  must  weigh  with  them 
in  all  that  is  within  the  province  of  discretion. 

Our  legal  discretion  must  have  respect  to  the  rights  of 
other  parties  who  are  waiting  in  the  country  for  a   hearing 
of  their  claims.     And  at  a  time  when  the  cry   of  delay    is 
loud  against  the  administration  of  justice  ;    it  would  seem 
to  me  that  it  is  our  duty  to  consult  despatch  in  the  trials ; 
and  to  refuse,  unless  in  extreme  cases^  the  throwing  the  mat- 
ter back  upon  another  jury.     The  public  sentiment  as  far  as 
I  can  collect  it,  is  with  the  juries,  and  we  hear  less  of  the  in- 
justice  of  verdicts^  than  of  the  delaij  of  trials.     If  a  more  spar- 
ing interference  of  the  courts  should  be  exercsied ;    it  may 
come  to  be  felt  by  the  people,  and  lead  to  a  reform  in  a  sys- 
tem, which  does  not  give  time  for  those  revisions  of  verdicts 

*  To  suckle  fools,  and  chronicle  small  beer.  Pofie. 


558  Law  JNIiscellanils. 

which  the  constitution  and  holding  of  the  English  courts 
admits.  Is  it  a  time  for  the  courts  of  this  country  to  be 
stretching  to  the  utmost  extent  the  control  of  verdicts,  -when 
the  strug-g-le  is^  whether  there  shall  be  law  judges  at  all?  Rules 
of  law  arc  to  be  regarded,  as  much  as  the  principles  of  any 
other  science ;  but  a  great  part  of  these  rules  which  we  call 
law,  are  but  the  dictates  of  natural  feeling,  or  moral  reason  ap- 
plied to  the  case  before  us ;  principles  of  equity  and  justice 
resulting  from  the  relations  or  contracts  of  men.  The  judge 
in  the  plenitude  of  his  pride,  is  apt  to  arrogate  to  himself, 
as  having  alone  the  capacity  to  judge  of  these,  or  to  apply 
ihetn^  xvhich  is  but  the  exercise  of  reason.  A  consideration  of 
these  particulars  ought  to  give  respect  for  the  deductions  of 
even  uneducated  men,  so  as  not  lightly  to  set  aside  what 
they  have  thought  the  justice  of  the  case. 

A  knowledge  of  rules  is  the  result  of  reading,  or  of  hear- 
ing :  but  the  application  of  them  requires  a  different  facul- 
ty, and  which  we  denominate  common  sense;  now  it  is  allow- 
ed on  all  hands,  that  a  man  may  have  at  least  the  reputation 
of  a  great  judge,  and  yet  be  deficient  in  the  knowledge  of 
hun^an  nature,  and  in  natural  understanding.  It  is  the  pro- 
vince of  a  court  to  assist  with  the  knowledge  of  rules  ;  and 
of  a  jury  to  assist  in  the  application  of  them.  This  gives  a 
jury  a  wider  field  than  the  mere  finding  of  a  fact,  even  sup- 
posing them  excluded  from  determining  what  the  law  is. 
The  sense  of  a  jury  in  the  application  of  law  to  the  fact,  is  a 
great  help  to  the  court,  and  a  great  support.  Consilium  simuly 
atque  auctoritas  adsunt.  (e)  \Tacit  de  Mor.  Germ.]  A  pas- 
sage which  expresses  the  case,  and  perhaps  shews  the  ori- 
gin of  juries.  I  never  therefore  find  the  verdict  in  agree- 
ment with  my  way  of  thinking,  as  to  the  justice  of  the  case 
before  me,  but  I  draw  from  it  strong  confirmation  of  my 
opinion ;  nor,  ever  find  it  against  it,  but  I  go  a  great  way 
in  taking  it  for  granted  that  I  was  wrong.  And  with  good 
reason  ',  for  it  has  been  rare,  that  I  have  not  observed  in  the 

fifj  Liguntur  in    iisdcm  consiliis   et  /irinci/ics   qui  Jura   fier 
fiagos  vicos'/ue  reddnntj  conci'Jian  siwul  atque  auctoritas  adsunt. 


Law  Miscellanies.  55^ 

jury  all  due  deference  to  the  judgment  of  the  court,  and  it 
must  be  a  strong  sense  of  right  or  wrong,  that  will  lead  them 
to  dissent.  It  is  this  experience,  and  this  course  of  thought 
that  has  given  me  some  renitency  to  applications  for  new 
trials.  It  has  been  perhaps  increased  by  the  time  taken 
up  in  arguing  them,  and  the  making  them  in  the  circuit 
courts,  mere  matter  of  course  ;  so  that  every  cause  must  be 
tried,  xv'ith  a  view  to  a  new  trial,  and  the  judge  is  more  con- 
cerned to  get  the  evidence  forward  to  the  hearing  in  term,- 
than  to  infer  from  it  in  the  first  instance. 

So  much  with  respect  to  the  province  of  the  jury  in  draw- 
ing a  conclusion  of  law,  and  the  province  of  the  court,  in 
controling  this  conclusion  in  setting  aside  a  verdict.  But 
in  matter  of  fact  the  conclusion  of  a  jury  is  still  more  to  be 
respected.  I  will  not  say  that  it  is  exclusively  their  pro- 
vince; but  it  is  peculiarly  their  province  and  likely  to  be 
invaded.  It  must  be  a  strong  case  that  would  make  me 
e^sy  in  throwing  the  parties  upon  the  country  for  a  new  trial, 
whefe  there  has  been  no  surprise ;  where  there  has  been  a 
full  hearing,  and  with  the  advantage  of  learned  counsel* 
But  when  the  motion  is  made  merely  on  the  ground  that  the 
verdict  is  against  evidence;  and  where  the  judge  who  has 
tried  the  cause,  and  before  whom  the  verdict  was  taken,  and 
sanctioned  it  with  his  judgment,  and  now  declares  himself 
satisfied  with  it,  I  am  nearly  prepared  to  say,  that  to  inter- 
fere, is  a  power  which  I  will  not  undertake  to  exercise,  at 
least  I  am  prepared  to  express  a  wish,  that  the  legislature 
may  interfere  and  take  av.^ay  the  appeal  in  such  cases  from 
the  circuit  court  altogether.  In  order  to  prevent  delay  this 
must  be  done,  or  the  system  must  be  changed. 

But  under  the  head  of  granting  new  trials  on  the  ground 
of  being  against  evidence,  I  do  not  comprehend  cases,  where 
looking  through  the  evidence,  it  may  be  seen  that  in  the 
nature  of  the  case  tlicre  is  evidence  behind,  which  had  not 
fcecn  before  the  jury,  or  in  the  words  of  the  chief  justice  of 
the  common  pleas,  3  Bos.  and  Pul.  495,  ''  some  facts  might 
be  established  which  arc  left  equivocal;"  or  where  an  evi- 
dent oversight  of  so;nc  facts  appears,  a  party  may  be  allow- 


5i60  Law  Miscellanies. 

ed,  in  the  language  of  Chambre,  3  Bos.  and  Pul.  372,  "  the 
opportunity  of  taking  the  opinion  of  another  jury." 

Having  made  these  preliminary  observations,  I  shall 
now  consider  in  a  few  words  the  case  before  the  couri.  It 
may  be  said  to  involve  a  question  of  law  ;  for  that  an  actual 
settlement  is  necessary,  to  support  the  claim  of  the  plaintiff, 
or  to  protect  the  defendant,  is  matter  of  law  ;  and  it  may  be 
that  what  shall  be  construed  an  actual  settlement  may  be 
considered  as  matter  of  law ;  but  this  consideration  in  the 
nature  of  the  thing,  is  so  involved  with  the  conclusion  to  be 
drawn  from  the  facts,  that  it  amounts  to  the  same  thing  ;  for 
the  question  will  be,  whether  the  facts  of  the  case  constitute 
an  act  of  settlement.  The  legal  conclusion,  and  the  conclu- 
sion from  the  evidence  cannot  be  separated.  The  verdict 
can  therefore  be  considered  only  on  the  ground  of  being 
against  evidence.  Here  then  we  have  the  conclusion  of  a 
jury,  and  the  sanction  of  the  judge  before  whom  the  cause 
was  tried ;  and  what  weighs  still  more  with  me,  that  judge, 
after  reflection  and  a  lapse  of  time,  declaring  himself  satis- 
fied with  the  verdict.  I  shall  therefore  not  be  disposed  to 
disturb  it ;  but  to  concur  in  refusing  a  new  trial. 


Observations  to  the  student  on  the  practice  of 

THE   LAW. 

SINCE  I  wrote  what  I  had  said,  "  might  be  called  an 
introduction,"  &c.  I  have  seen  the  preface  to  the  American 
edition  o(  lord  Erskine's  speeches,  New-York,  1813.  The 
editor  is  of  opinion,  "that  it  can  be  demonstrated,  that  there 
is  actually  a  greater  aggregate  amount  of  talent  exhibited  at 
the  American,  than  at  the  English  bar."  He  founds  this 
upon  reasons  a  priore,  that  there  ought  to  be.  "  For,  in 
this  country,"  says  he,  "  there  is  no  other  outlet  for  the  first 
rate  talent  of  her  children,  than  that  of  the  profession  of  the 
law.  That,  the  nature  of  our  political  institutions  forbids 
any  hope  of  our  statesmen  acquiring  any  permanent  power 


Law  Miscellanies.  561 

or  extensive  wealth  and  influence  in  the  community ;  and 
consequently,  offers  no  adequate  inducement  for  the  primary 
talents  of  the  country  to  devote  themselves,  exclusively,  to 
a  life  of  politics;  whence  the  government,  whether  national, 
or  of  each  single  state,  seldom,  or  never  commands  for  its 
permanent  service,  the  first  rate  abilities  of  America ;  that 
the  pulpits  of  America  are  not  sufficiently  favoured  by  pub- 
lic opinion  to  offer  an  adequate  bounty  of  stipend,  reputa- 
tion, and  influence  to  conciliate  to  their  service  the  life-ef- 
forts of  paramount,  comprehensive  talents  ;  that  the  navy 
and  army  of  the  country  have  not  yet  grown  up  to  a  suffi- 
cient size  and  extent  of  magnificence,  to  vindicate  to  them- 
selves the  highest  order  of  American  genius ;  and,  that  in 
no  country  of  the  globe  have  trade  and  mechanics,  or  the 
plough  taken  to  themselves  permanently,  very  commanding 
abilities." 

I  am  not  able  to  say  what  may  be  the  relative  merit  of 
English,  and  American  lawyers  ;  but  this  I  have  uniformly 
found,  that  the  inhabitants  of  all  states,  and  even  districts  of 
a  state,  are  in  the  habit  of  conceiving  that  the  lawyers  of  their 
states,  or  districts  are  the  first,  in  legal  knowledge  and  in 
eloquence.  Said  an  individual  of  New- York  to  me  some 
years  ago,  with  whom  I  happened  to  lodge  in  an  hotel, 
'•  We  have  lawyers  in  our  state  that  will  go  you  back  an  hun- 
dred years  ;"  he  meant,  in  citing  cases.  But  we  have,  said 
I,  some  with  us  in  Pennsylvania,  that  will  g-o  you  back  tTvo. 

Even  professional  men  will  naturally  be  disposed  to  over- 
rate the  talents  of  each  other,  where  they  have  only  them- 
selves to  compare  with.  But,  in  proportion  to  the  opportu- 
nity they  have  of  seeing,  and  hearing  advocates  elsewhere, 
their  respect,  or  admiration  must  be  reduced,  in  some  de- 
gree, for  those  they  have  at  home.  The  publication  of  our 
American  reports,  of  sundry  of  these  states,  must  tend  to 
enlarge  the  minds  of  professional  men,  as  well  as  of  others, 
with  regard  to  the  relative  legal  knowledge,  or  talents  of  ad- 
vocates. 

I  should  be  very  happy  to  believe,  that,  from  whatever 
caus-.  it  may  be,  our  lawyers  are  not  behind  those  of  Eng- 

4  B 


502  Law  Miscellanies. 

land,  if  not  before  them,  in  professional  ability;  and  I 
should  have  no  objection  to  believe  it  to  be  the  case,  that 
our  judges  are  not  behind  those  of  England.  For,  having 
the  honour  to  be  a  judge,  I  should,  in  that  case,  be  inclu- 
ded. Nor  can  I  see  any  reason  why  we  should  be  behind 
them,  unless  we  suffer  our  minds  to  be  subdued  by  an  opinion 
of  their  superiority,  and  the  precedent  of  their  opinions ; 
and,  if  we  are  inferior,  I  could  assign  no  stronger  cause, 
than  such  subjection.  And  it  has  been  no  small  cause  of 
my  object  in  this  publication,  to  give  a  spring  t^  the  mental 
faculties  of  the  student,  and  teach  him  to  free  himself  from 
the  shackles  of  great  names ;  and,  wjt/  lords  upon  a  king^s 
bench,  A  student  that  is  taught  to  think  for  himself,  not 
slighting,  or  undervaluing  the  wisdom  of  those  before  him, 
bids  fair  ta  rise  to  eminence,  his  mind  being  strengthened 
by  reflection.  But  there  is  a  medium  in  all  admiration^  or 
widervaluation.  I  have  thought  the  judges  with  us  have  been 
too  much  fettered  with  English  decisions;  not  distinguish- 
ing what  was  decided,  from  the  reason  of  it.  As,  for  in- 
stance, in  the  case  of  Perrin  and  Blake,  where,  merely  be- 
cause the  technical  construction  in  a  devise  prevailed,  we  ne- 
glect the  reasoning,  and  good  sense  of  those  who  support  the 
contrary,  that  intention  shall  alo7ie govern.  Hargrave,  in  his 
dissertation  on  the  rule  in  Shelly's  case,  has  abundantly 
shewn  the  fallacy  of  the  application  of  it  to  the  case  of 
technical  expression  in  a  devise.  And  yet  there  are 
courts  and  judges  that  still  stick  to  it,  not  considering 
the  greater  latitude  that  we  have  here  in  shaking  a  decision, 
or  retaining  it.  The  case  also,  of  distinguishing  between 
v/hat  shall  give  real  property,  and  personal,  in  full  interest^ 
such  as  the  testator  had^  is  an  instance  of  this  narrowness 
which  is  still  retained.  I  see  that  it  has  been  put  down  in 
Virginia  by  Tucker  and  Fleming,  in  the  high  court  of  errors 
and  appeals,  Roan  sticking  like  a  barnacle  to  the  bottom  of 
the  old  doctrine.  At  the  same  time  I  do  not  mean  to  un- 
dervalue judge  Roan.  His  argument  in  the  case  of  Reed  v. 
Reed,  1  Munford,  Appendix,  shews  him  to  possess  super- 
'■mlnent  abilities.     But  us  to  this  point,   the   construing  a 


Law  Miscellanies.  5C3 

devise,  I  am  with  the  majority.  Judge  Tucker,  in  the  case 
of  Wyattv.  Sadler's  heirs,  1  Munford,  53r,  observes,  "that 
there  is  one  reason  which  does  not  exist  in  England,  why  the 
intention  of  the  testator  in  the  distribution  of  his-lands  among 
his  children  ought  to  be  referred  to  an  estate  of  inheritance, 
unless  the  contrar}'  intention  manifestly  appear."  It  is,  that 
lands  were  the  property  most  easily  acquired  in  this  country, 
iis  well  as  most  necessary  to  the  support  of  a  family.  A 
father  often  had  nothing  else  to  give.  In  distributing  it,  he 
must  be  presumed  to  do  a  fathei-'s  part  among  his  children 
by  giving  an  estate  of  inheritance.  The  contrary  construc- 
tion has  still  some  foothold  in  this  state,  but  it  must  soon  go. 
It  will  certainly  go  by  a  legislative  provision,  unless  the  de- 
cisions of  the  courts  render  it  unnecessary  for  the  legisla- 
ture to  interpose.  But,  to  return  from  whence  I  have  di- 
gressed. V 

I  have  no  idea  that  either  judges  or  lawyers  here,  are  in- 
ferior, in  natural  powers^to  the  lawyers  or  judges  of  England. 
For  I  t2ike  the  man  of  America,  I  do  not  mean  the  aborigines, 
to  be  at  least  equal  to  the  man  of  the  European  countries, 
whence  we  have  emigrated.  But  I  am  not  sure  that  we 
have  equal  advantages  of  acquiring  legal  information,  and 
becoming  eminent.  Their  law  lectures  by  professors  in  the 
universities,  is  an  advantage  in  the  course  of  academial  stu- 
dies. But  still  more,  the  opportunity  they  have  of  studying 
at  what  are  called  the  Inns  of  court,  I  should  conceive  to  be 
a  pre-eminent  advantage,  having  the  opportunities  of  fami- 
liarly conversing  with  learned  Serjeants  ;  and  more  especial- 
ly with  each  other;  and  whetting  the  appetite  for  study,  and 
exercising  the  faculties  of  the  mind  in  legal  research,  and 
investigation.  Besides  all  this,  the  opportunity  of  attending 
the  courts,  and  &c:eing  and  hearing  trials,  and  the  manner  in 
which  they  are  conducted,  is  an  advantage.  We  have  not  the 
same  advantage  here,  in  all  places. 

But  a  great  drawback  with  us  in  the  profeGsion  of  the 
law,  is  that  here,  every  man  must  be  his  own  attorney, 
and  sometimes  his  own  conveyancer  in  the  course  of  his 
practice.     He  must  attend  with  unceasing  vigilance  to  watch 


564  Law  Miscellanies. 

the  court  docket,  and  take  notice  of  the  entry  of  rules,  &c. 
Settling  dockets,  and  putting  down  causes,  and  all  matters 
preparatory  to  the  trial  takes  up  a  great  deal  of  time.  The 
examination  of  witnesses,  beforehand,  where  the  witnesses 
for  his  client  are  willing  to  attend  him,  and  the  making  out 
his  own  brief  from  these,  with  his  cases,  must  also  be  at  the 
expence  of  time.  For,  all  these  matters  preparatory  to  the 
trial  are  indispensibly  necessary  to  the  knowing  what  can  be 
proved,  and  what  demand  to  urge,  or  defence  to  make. 

The  first  thing  that  a  practising  lawyer  ought  to  do, 
Avhen  a  client  applies  to  him,  is  to  take  a  note  of  what  he 
'Will  undertake  to  prove ;  or  will  probably  be  able  to  prove, 
and  to  read  it  to  him,  lest  he  should  afterwards  say,  or  at 
least,  think,  you  have  deceived  me ;  you  thought  I  had  a 
good  cause  and  would  succeed.  The  answer  is,  take  notice 
my  friend,  we  are  both  deceived ;  your  witnesses  have  not 
proved  up  to  the  statement  you  made  to  me'. 

The  examination  of  your  client's  witnesses  immediately 
before  the  trial,  is  of  moment  that  they  may  understand 
to  what  point  it  is  that  you  call  them ;  that  they  may  not 
take  up  the  time  of  the  court,  by  a  cock  and  a  bull  story,  as 
the  phrase  is,  but  come  to  the  point  at  once.  A  man  of  con- 
science or  of  honour  would  not  wish  to  drill  them  farther 
than  this,  even  were  they  disposed  to  go  farther.  But  his  ob- 
ject would  be  to  get  the  truth  from  them,  and  let  them  un- 
derstand v/hat  circumstances  are  irrelevant,  and  to  be  thrown 
out  of  the  case,  and  which  a  court  itself  would  exclude  if  the 
testimony  of  a  witness  could  be  got  at  without  such  unneces^ 
sary  appendages.  As  to  an  adversary's  witnesses  a  man  of 
delicacy  would  scorn  to  interfere  with  them  lest  he  should  bo 
supposed  to  have  tampered  with  them,  or  to  have  misled. 

Of  the  moyens  de  parvenir,  or  means  of -getting  forward 
in  the  practice,  I  have  already  said  something;  viz.  the  qua- 
lifying for  a  discharge  of  the  trust  of  an  advocate  by  previous 
legal  studies,  and  still  more  by  diligence,  and  attention  in 
iuisiness.  It  is  impossible  but  the  capable  counsel  will  al- 
rvays  have  the  ear  of  the  court,  unless  something  offensive  in 
•vis  n^ann'-rs,  sliould  occasion  hitn  to  be  frowned  upon,  aji^ 


Law  Miscellanies.  5.6 j 

prejudice  even  against  his  reasons ;  for  it  is  not  in  human 
nature,  but  that  a  judge  will  be  repelled  even  though  in  a  de- 
gree imperceptible  to  himself,  from  a  patient  hearing  to  an 
ill-behaved  person  of  the  bar.  And  there  will  be  petulant 
advocates  at  all  times,  as  well  as  impatient,  or  perhaps  arro- 
gant judges.  But  it  is  impossible  for  a  judge  however  well 
disposed  personally  to  the  counsel,  to  bear  with  him,  in  the 
unskilful  management  of  a  cause,  or  a  desultory,  and  still 
more,  a  tedious  harangue.  The  decies  repetita,  is  not  a 
motto  for  a  Serjeant's  ring.  Knock  down  your  argument  on 
that  point  of  law,  or  fact,  I  have  thought  sometimes,  while 
vm  advocate  has  had  it  a  long  time  under  the  hammer,  like 
an  auctioneer ;  it  will  fetch  no  more,  Tediousness,  is  gencr 
rally  the  effect,  not  so  much  of  a  want  of  talents  to  be  brief, 
as  of  a  want  of  previous  study  of  his  case,  and  due  prepara- 
tion. The  firstlings  of  all  men's  thoughts  ought  to  be  dou- 
ble distilled  in  the  alembic  of  the  brain,  to  make  full  proof. 

I  come  now  to  give  a  hint,  that  is  worth  a  Jew's  eye,  ae 
the  phrase  is,  to  the   young  practitioner  of  law  :  this  is  to 
endeavour  to  recommend  himself  to  the  older,  and  abler  of 
the  profession,  by  shewing  that  he  can  be  serviceable  in  a 
cause   into  which  he  may  have  had  the  good  fortune  to  be 
introduced.    It  cannot  be  expected  of  him  to  do  much  in  the 
higher  department  of  conducting  a  suit,  or  arguing  the  cause, 
xipon  a  point  of  law.     And  perhaps  not  much  in  convincing 
a  jury  as  to  the  conclusion  of  fact  which  his  client's  interest 
requires  to  be  drawn.  For  it  requires  an  intimate  knowledge 
of  the  human  heart,  from  reflecting  upon  the  operations  of 
our  own  passions,  or  from  our  experience,  and  observation 
of  those  of  others,  to  enable  to  persuade  the  mind  ;  and  to 
this,  in  the  nature  of  the  case,  the  young  cur  of  the  profes- 
sion cannot  but  be  greatly  incompetent.     But,  it  mav  be  ex- 
pected, and  ought  to  be  expected  of  him,  that  he  will  do, 
what  he  can  do,  and  to  which,  until  he  acquires  experience, 
he  may  be  competent.     And  this  is  the  taking  care  of  the 
pocket  J  watching  the  entries  of  rules  ;  searching  the  dock- 
et ;  copying  a  declaration,  or  statement ;  or  a  notice  ;  or  a 
^aper  book  for  a  court  of  error,  &c.     Giving  audience  to  a 


o66  •  Law  IMiscLLLANiES. 

client,  and  keeping-  him  off  from  the  leading  counsel  who  ib 
otherwise  engaged  in  his  behalf,  and  tb  better  purpose  than 
listening  to  him,  though  the  client  may  not  be  able  to  com- 
prehend this.  Nevertheless,  it  is  what  the  younger  practition- 
er can  do.  For  as  to  the  client,  he  measures  your  attention 
to  his  cause,  and  the  interest  you  take  in  it,  by  the  hearing 
you  give  him.  The  younger  in  the  practice,  may  take  all, 
or  some  of  these  matters  on  himself.  For,  it  is  the  maxim, 
and  ought  to  be,  "  Juniores  ad  labores."  Matters  of  mere 
labour  let  the  junior  take. 

In  the  course  of  all  this  business,  the  younger  counsel 
will  find  himself  well  rewarded  by  the  information  he  will 
acquire  of  the  practice,  from  the  corrections,  and  directions, 
of  the  older  in  the  profession.  But  it  is  oftentimes  the  case, 
that  the  younger  will  be  for  doing  what  they  are  not  capable 
of  doing ;  and,  from  a  false  sense  of  honour,  and  obstinacy 
of  silly  pride,  they  will  not  do  what  it  may  be  in  their  pow- 
er to  do.  The  consequence  is,  the  elder  counsel  will  not 
fmd  his  account  in  being  coupled  with  them,  and  therefore 
will  neither  take  the  pains  to  instruct,  nor  exert  himself  to 
get  them  employed,  and  brought  forward  in  a  cause. 

The  false  pride  of  the  younger  counsel  may  take  the 
alarm  at  being  thought  to  act  a  subordinate  part  in  all  these 
inferior  matters ;  and  especially  the  being  thrown  as  a  tub 
to  the  whale,  to  keep  the  client  off;  but  he  will  find  his 
account  in  it;  for,  by  his  hearing  patiently,  and  seeming  to 
understand,  he  will  gain  the  good  will,  and  confidence  of 
the  client,  who  will  very  probably  attribute  to  him  his  suc- 
cess in  the  cause,  if  he  shoidci  happen  to  succeed.  In  the 
petit^gnerre  of  the  trial,  there  will  be  occasions  when  a  judi- 
cious leading  counsel  may  safely  suffer  him  to  speak.  For 
the  discharge  of  artillery  even  where  there  is  but  flash  and 
smoke,  may  do  something  by  the  sound  j  it  may  check  the  pro- 
gress of  an  enemy,  until  the  column  is  formed  in  another 
quarter.  At  the  same  time,  by  managing  the  piece,  the 
voung  artillerist  will  acquire  a  facility,  though  he  has  but 
powder ;  and  may  be  the  better  able  to  direct  it,  when  he 
comes  to  have  ball. 


Law  Miscellanies.  567 

It  is  the  county  and  circuit  courts  chiefly,  that  I  have 
in  my  eye  in  giving  these  prescriptions,  where,  in  the  country 
a  great  deal  of  business  presses  all  at  once  upon  the  counsel, 
and  it  is  of  moment  to  have  some  person  in  the  cause,  that 
will  do  the  hearing  business,  without  which  a  client  will  not 
be  satisfied.  He  will  sit  by  you  even  in  court,  and  injure 
himself  by  disturbing  you.  I  once  was  out  of  humour  by 
one  who  interupted  me  in  this  manner  at  an  important  point, 
an  exception  to  evidence.  He  jogged  me,  and  I  gave  him  a 
pretty  smart  jog  in  return.  He  was  what  is  called  a  back- 
woods man,  and  a  hunter;  I  had  him,  the  opponent,  in  my 
eye,  said  I,  his  defeat  in  my  eye ;  my  rifle  raised ;  and 
now  by  that  jog  on  the  elbow  I  have  lost  my  shot. 

But  I  have  another  hint  to  give  which  will  avail  the 
young  practitioner  when  he  has  got  into  business;  and  that 
is  to  try  to  keep  it*  For  be  assured  it  is  much  more  easy 
to  get  into  business,  than  to  keep  it.  Assiduity,  is  the  se- 
cret of  this,  in  illustrating  which,  the  bargeman  rowing  up 
the  stream  presents  himself  to  me  as  a  similitude.  For,  if 
he  loses  a  single  stroke,  the  boat  is  carried  back  by  the  cur- 
rent proportionably  to  the  loss  of  that  stroke ;  for,  sa)'s  the 
the  poet, 

"  Non  aliter  quam  qui  adverse  vix  fiumine  lembum 
Remigiis  subigit:  si  brachia  forte  remittit, 
Atque  ilium  in  prseceps  prono  rapit  alveus  amni/' 
Nor  is  it  so  difficult  to  keep,  as  to  recover  professional 
practice  when  once  lost.  The  idea  of  a  new  lawyer  has  some 
charm  with  it ;    but  having  lost  business  by  neglect,  the 
charm  is  worn  off,  and  the  presumption  arises,  that  he  will 
neglect  it  again. 

The  going  into  the  legislature  may  perhaps  not  injure 
before  a  young  lawyer  gets  much  into  practice.  It  may  be 
a  means  of  increasing  it  after  a  short  absence  and  return  to 
the  bar.  But  it  is  dangerous  unless  managed  solely  with 
this  intent,  and  with  a  view  to  this. 

As  to  the  moyens  de  parvcnir,  or  coming  forward  at  the 
bar  when  you  have  got  practice,  so  far  as  respects  public 
sneaking  in  a  cause,  you  must  speak  when  then;  is  an  occa- 


568  Law  Miscellanies. 

slon,  or  necessity  for  it,  and  perhaps  sometimes  when  there 
is  not ;  and  this  with  a  view  to  improve  the  faculty.  It  is 
only  by  frequent  speaking  that  a  habit  is  acquired ;  and 
without  some  habit,  it  is  impossible  to  have  a  facility.  It 
need  be  no  discouragement  that  you  make  out  badly  the  first 
time.  I  would  consider  hesitation  as  a  presage  of  future 
eminence ;  at  least  I  would  consider  it  as  no  evidence 
to  the  contrary.  I  would  not  object  to  the  writing,  and  re- 
ducing thoughts  on  the  case  to  notes  ;  but  no  prooemium,  or 
common  place  introduction  to  declaim  from ;  for  you  will 
soon  come  to  the  edge  of  the  bank  from  which  you  must 
step  down,  and  every  one  will  discover  the  tumble  you  mu^t 
make.  The  tones  of  a  declaimer  are  usually  unnatu- 
ral ;  nor  can  the  diction  be  sustained,  when  you  come  to  the 
expression  of  your  sentiments  as  they  occur,  extempore.  It 
is  better  to  begin  without  any  set  speech,  even  though  your 
confusion  should  be  as  great  as  that  of  the  mayor  delivering 
the  address  of  his  corporation  to  Charles  II.  who  made  his 
apology,  and  had  occasion  for  it,  that  he  had  begun  at  the 
ivrong  end. 

As  shewing  the  natural  progress  of  the  eloquence  of 
him  who  thinks,  I  give  the  model  of  Ulysses,  according  to 
Homer : 

When  Atreus'  son  harangued  the  listening  train. 
Just  was  his  sense,  and  his  expression  plain, 
His  words  succinct,  yet  full,  without  a  fault ; 
He  spoke  no  more  than  just  the  thing  he  ought. 
But  when  Ulysses  rose  in  thought  profound, 
His  modest  eyes  he  fix'd  upon  the  grouncl. 
As  one  unskill'd  or  dumb  he  seem'd  to  stand, 
Nor  rais'd  his  head,  nor  stretch'd  his  sceptcr'd  haiid  . 
But  when  he  speaks,  what  elocution  flows  1 
Soft  as  the  fleeces  of  descending  snows 
The  copious  accents  fall,  with  easy  art ; 
Melting  they  fall,  and  sink  into  the  heart ! 
Wondering  we  hear,  and  fix'd  in  deep  surprize  ; 
Our  ears  refute  the  censure  of  our  eyes. 

I  would  rather   hear  a  young  lawyer  faulter  and  stammer 


Law  Miscellanies.  569 

{and  without  habit,  it  will  be  the  case  with  every  mind  of 
sensibility)  than  to  hear  him  run  on  with  a  flippancy  in  the 
first  instance,  that  argues  the  having  committed  a  speech  to 
memory,  or  the  having  little  depth  of  thought  to  embarrass 
the  current  of  his  diction.  The.  exercise  of  extempore  speak- 
ing is  every  thing;  but  no  committing  to  memor}',  or  de- 
claiming is  of  any  use  at  the  bar,  but  the  contrary.  Deba- 
ting societies  of  students  of  the  law,  with  a  view  to  this,  is 
of  great  use,  when  the  point  proposed,  is  studied  with  atten- 
tion, and  a  just  eloquence  cultivated,  grounded  on  a  know- 
Jedge  of  the  subject. 

It  may  be  seen  that  Ulysses  did  noteome  forward  with 
a  set  speech,  but  had  the  images  in  his  mind,  and  a  perfect 
understanding  of  his  subject.  It  was  not  until  his  mind 
heated  by  the  assaying  to  nxxtr^  that  feeling  gave  htm  action, 
and ajlaw  of  elocution.  Coming  warm  from  the  heart;  it 
is  this  kind  of  eloquence  that  reaches  the  heart.  All  else  is 
but  the  recitation  of  an  unimpressed  person.  I  set  no  store 
therefore  by  the  gestures  taught  in  the  schools,  or  declaiming' 
with  attitudes  of  raising  hand  and  lifting  foot;  I  would  rather 
have  a  dancing  master,  that  would  confine  himself  alone  to 
teaching  the  postures  of  the  limbs,  and  the  bearing  of  the  body. 
A  drill  seargeant  would  not  be  amiss  as  to  all  this.  Extempore 
speaking  with  the  gestures  that  the  feelings  excite,  is  alone  the 
language,  and  the  eloquence  of  nature.  Coming  from  a  breast 
full  of  the  subject  it  is  irresistible.  A  speech  condensed  and 
written,  and  committed  wholly  to  memory,  is  another  matter ; 
Ijut  this  can  have  no  place  in  the  eloquence  of  the  bar.  Be- 
cause,' except  as  to  a  common  place  introduction,  it  cannot 
be  known  what  to  say,  but  as  the  occasion  of  the  evidence, 
or  argument  calls  for  the  oratory. 

On  being  applied  to,  for  the  purpose  of  advice  as  to  the 
bringing  a  suit/or  a  client,  you  will  doubtless  advise  accord- 
ing to  the  best  of  your  judgment.  But  take  it  to  be  the 
case  that  you  have  been  consulted,  and  the  evidence  fairly 
disclosed  to  you,  and  you  have  approved  the  bringing  suit, 
the  plaintiff  in  your  opinion,  having  the  law  clearly  in  his  fa- 
vour.    But,  upon  tri^ij-,  though  he  proves  all  that  he  harl  un 

4  C 


57b  Law  MiscellAwils. 

dertaken  to  prove,  and  the  defendant  nothing  to  overthrow 
it,  so  as  to  change  the  law,  which  you  had  pronounced  to  be 
in  his  favour,  yet  the  decision  of  the  court  has  been  against 
you,  what  are  you  then  to  do.  I  will  not  say  what  you  are 
to  do,  but  I  will  state  to  you  the  address  of  a  young  practi- 
tioner whom  I  once  knew,  not  overburthened  with  legal 
knowledge,  at  least  not  the  greatest  lawyer  in  Christendom, 
who  happened  to  be  in  the  predicament  of  which  I  speak, 
and  being  upbraided  by  his  client  with  the  usual  language, 
"  did  you  not  tell  me,  I  had  the  law  on  my  side  ?"  Apd  did 
I  not  tell  the  court  so  too,  says  the  advocate ;  did  you  say* 
the  client.  Ay,  did  I ;  to  their  faces ;  I  told  them  you 
had  the  law  on  your  side.  The  governor  can  give  commis- 
sions, but  nature  only  can  give  sense.  What  could  a  client 
have  more  to  say  ? 

In  such  a  case  the  instinctive  impulse  of  self-preserva- 
tion will  lead  the  advocate  to  lay  the  blame  upon  the  judge, 
or  upon  the  whole  court  if  the  decision  should  have  been 
unanimous.  Where  a  single  judge  decides  for  him,  he  is 
safe  enough,  but  where  the  whole  court  is  against  him,  what 
can  he  do,  but  insist  upon  them  being  wrong;  and  it  is  not 
impossible  but  that  they  may  have  erred.  When  at  the  bar, 
I  have  been  as  much  shocked  at  the  decision  of  a  court,  on 
a  point  of  law,  as  I  have  ever  been  at  the  verdict  of  a  jury 
on  a  matter  of  fact.  In  contemplation  of  law,  the  court  are 
always  right,  but  in  contemplation  of  reason  and  common 
sense,  they  may  have  erred.  But  though  a  counsel  has  a  right 
in  self-defence  with  his  client,  or  to  others,  to  assert  his 
own  judgment  against  a  judicial  opinion,  it  is  a  matter  of 
extreme  delicacy  as  to  the  mode  and  manner  of  arraigning 
the  decisions,  and  as  to  the  language  used.  Insinuations 
against  the  integrity  of  a  judge,  or  court,  may  lead  to  the 
penal  consequence  of  being  struck  off  the  roll ;  and  at  all 
events  is  a  great  imprudence ;  for,  coming  to  the  ear  of  a 
court  or  judge,  it  is  not  in  human  nature,  that  he  can  be  so 
well  disposed  to  listen  to  you  arid  take  atx  interest  in  your 
success  at  the  bar.  It  is  always  of  great  moment  to  a  prac- 
tising attorney  to  be  thought  to  stand  well  with  a  jtidge  or 


Lwv  Miscellanies.  371 

court.  For  in  general  it  is  an  evidence  that  he  deserves  to 
stand  well ;  and  this  from  hh  Icg-al  knoivleilge  and  attenlion 
^0  business. 

But  I  come  now  to  say  a  little,  on  perhaps,  a  more  im- 
portant point ;  that  of  self-preservation  from  bad  habits. 
These  are  frequently  acquired  from  mere  imitation,  or  the 
idea  of  being  a  fashionable  fellow ;  such  as  smoaking  se- 
gars,  which  is  detestable  in  a  young  person,  and  never  fails 
to  exhibit  to  me  the  evidence  of  a  bad  family  education,  or 
indulgence.  Or,  if  not  proceeding  from  that  source,  the 
effect  of  puppyism,  which  bespeaks  a  mind  naturally  little, 
and  of  the  petit  maitre  kind.  Imitators  are  contemptible 
every  where  ;  such  as  at  London,  or  Paris,  your  opera-glass 
coxcombs.  The  wearing  spectacles,  some  years  ago,  was 
common  in  Philadelphia,  among  the  young  men,  because 
there  happened  to  be  a  few  great  men  there,  In  the  profes- 
sion of  the  law,  that  wore  spectacles  ;  Wilson,  Lewis,  Coxe, 
and  Wilcox.  They  wore  thein  because  they  needed  them ; 
on  account  of  the  convexity  of  the  visual  orb.  But  the  use 
of  glasses  by  their  imitators,  when  they  walked  the  streets, 
was  from  an  affectation  of  being  thought  learned  men,  1>€- 
cause  they  resembled  such  in  a  nearness  of  vision,  and  the 
necessity  of  using  lenses  on  the  nose.  It  was  more  pardon- 
able in  a  blind  man  whom  I  once  knew,  who  wore  spectacles 
to  make  people  believe  that  he  could  see. 

But  the  segar  excites  thirst  and  leads  to  intemperance. 
When  the  mouth  is  parched,  you  must  wet  the  whistle;  re- 
course must  be  had  to  something  to  moisten  it.  That 
which  Vr'as  at  first  unnecessary,  and  mere  vv^antonuess  of  in- 
dulgence, becomes  a  habit,  and  cannot  be  got  rid  of,  but  in- 
creases vmlil  the  individual  becomes  the  slave  of  tobaccft, 
and  of  spirituous  liquor.  I  never  see  a  youn^  person  with  a 
segar  in  his  teeth,  but  I  give  him  up,  as  oiie  that  will  ne- 
ver come  to  much.  In  early  life  there  can  be  no  necessity  for 
narcotics,  or  use  in  them,  as  a  sedative  ;  nor  is  there  any 
necessity  for' the  use  of  stimulants,  when  the  animal  spirits 
are  of  themselves,  gay,  and  sufficiently  volatile.  These 
'Jiings  ought  all  to  be  reserved  for  a  more  advanced  ag",  il 


572  >  Law  Miscellanies. 

used  at  all,  and  the  beginning  too  soon  with  the  use  of  thera 
is  unnatural,  and  destructive. 

The  situation  of  the  greatest  danger  to  a  young  practi- 
tioner of  law  is  a  remote  county  town,  where  amusements 
are  few,  and  a  literary  society  is  wanting.  The  attending  the 
courts  is  to  all,  a  scene  of  inducement  to  intemperance,  it 
being  the  lawyer*s  harvest,  and  as  on  that  occasion,  as  with 
agricultural  men,  so  on  this  with  the  lawyer,  there  is  a  lati- 
tude of  mirth,  and  convivial  indulgence,  to  which  those  are 
the  most  exposed,  whose  society,  from  wit  or  song,  or  other 
talent  is  the  most  courted.  There  can  be  no  profession  where 
it  behooves  to  be  so  much  upon  guard,  in  these  respects,  as 
the  practitioner  of  the  law.  Intemperance  of  living  at  the 
county  courts,  and  sitting  up,  perhaps  at  cards,  "  hath  cast 
down  manij  wounded ;  mariy  strong  men  have  been  slain  by 
it.''^  It  is  owing  to  these  causes,  and  circumstances,  in  a 
great  degree,  that  so  ftw  succeed  in  the  profession  of  the 
law,  which,  I  will  admit,  will,  in  a  republic,  where  the 
law  governs,  always  have  the  first  place  as  an  order  or  rank 
of  men.  Political  science  constitutes  no  order  or  rank,  for 
the  standing,  to  an  individual  is  but  occasional,  not  perma- 
nent. 

Nor  do  I  speak  of  agriculture,  for  that  does  not  comt 
under  the  denomination  of  a  profession.  That  of  arms  doesj 
and,  inter  arma  silent  leges  f  in  time  of  war  the  soldier 
occupies  the  whole  attention  of  the  public ;  but  a  standing 
army,  on  a  great  scale,  has  never  been  favoured  in  a  repub- 
lic. It  is  contrary  to  the  genius  of  it,  and  will  be  certainly 
depressed,  and  frowned  upon,  perhaps  more  than  it  ought 
to  be.  For  though  a  militia  is  a  proper  organization  for  a 
time  of  peace,  and  the  preservation  of  civil  liberty ;  yet,  for 
the  purposes  of  actual  service  in  a  war  with  a  foreign  ene- 
my, whether  of  offence,  or  defence,  an  army  enlisted  for,  and 
during  such  war^  is  the  only  efficient  force.  It  must  be 
piade  a  man's  business,  to  be  in  camp,  to  make  it  his  home; 
and  it  must  be  made  his  home,  to  keep  him  contented  in  it, 
riiat  subordination  is  necessary  in  a  stated  body  of  troops, 
vhich  cannot  he  foimd  In  a  militia. 


Law  -Miscellanies.  57t 

The  7iavi/  unquestionably,  in  a  republic,  will  always  oc- 
tupy  the  next  grade  in  rank  to  the  civil  authority,  and  those 
connected  with  it ;  the  one  supporting  the  laws,  and  the 
administration  of  justice  in  the  interior ;  the  other  protect- 
ing from  without.  For,  commerce,  to  a  people  that  live  up* 
on  the  water,  will  be  sought;  and  to  protect  commerce  a 
navy,  a  permanent  navy,  is  essentially  necessary.  I  do  not 
know  to  whom  to  attribute  the  depression  of  ours,  at  an  ear- 
ly period  after  it  had  begun  to  be  cultivated ;  but  to  that 
source  I  attribute  all  our  national  humiliation  for  a  length  of 
time,  and,  all  the  calamities  of  the  present  war.  If  we  had 
gone  on  as  we  had  begun,  to  build  seventy-fours,  and  fri- 
gates, we  should  have  had  no  tribute  to  paj^  to  Barbary  pow- 
ers; no  constructive  blockades  from  the  English  govern- 
ment, which  was  the  earliest  aggression ;  no  Berlin  decree, 
or  orders  of  council ;  or  Milan  decree  following  these ;  no 
British  captures,  nor  French  spoliations ;  no  necessity  for 
embargo,  a  measure  which  it  was  expected  to  relieve  us 
from  the  necessity  of  war.  But  what  is  more,  we  should 
have  had  no  impressment  of  American  seamen,  under  a 
pretence  of  being  British  seamen  ;  nor  would  Britain,  witli 
all  her  wave-ruling  boasts,  have  dared  to  question  our  right 
of  impatriaPion,  which  she  herself  exercises,  in  its  fullest 
latitude,  and  protects  in  her  employment^  naturalized  or  not^ 
as  she  ivouldher  own  subjects^  without  asking  questions  as  to 
the  service  in  which  they  had  before  been;  or  the  countty  to 
whom  they  might  have  before  belonged.  The  means  of  de- 
fence, and  the  spirit  to  defend,  is  the  only  preservative  of 
peace  to  a  nation,  as  it  is  of  safety  to  an  individual. 

With  such  a  force  upon  the  ocean,  as  we  might  have  had 
before  the  present  war,  to  protect  our  own  trade,  and  annoy 
that  of  Britainyshe  would  have  been  cautious  with  regard  to 
the  Indian  in  our  neighbourhood,  or  the  suffering  trading 
companies,  for  the  sake  of  gain,  and  a  monopoly  of  fur,  and 
peltry,  to  excite  men  to  hostilities  with  our  frontier  settle- 
tlements.  For  I  will  not  charge  her  with  more,  in  the  first 
instance^  than  suffering  these  traders  to  excite  an  Indian  war 
against  us ;  however  she  may  have  come,  in  the  next  in- 
stance^ to  acknowledgfi  them  as  allies  ;  and  to  close  the  ell- 


5/4  Law  Miscellanies. 

max  by  the  ne  plus  ultra  of  degradation^  arid  national  barba- 
rity^ to  place  the  scalp  with  the  speaker^s  mace,  in  the  capitai 
of  Upper  Canada, 

But  now  to  conclude  what  I  have  to  say  to  the  student. 
You  will  not  understand  me  as  at  all  conceiving  that  what 
I  have  suggested  in  the  preceding  notes,  and  observations, 
is,  in  all  respects  correct.  For  even  the  great  Lyttleton, 
concludes  his  treatise  upon  tenures  with  a  caution  which 
must  much  more  become  such  a  jurist  as  I  can  pretend  to 
be,  even  though  writing  upon  matters  less  profound  than 
those  upon  which  he  wrote,  viz.  to  use  his  own  language, 
*'  Know  my  son,  th^t  I  would  not  have  thee  believe  that  all 
which  I  have  said  in  thes€  books  is  law ;  for  I  will  not  pre- 
sume to  take  this  upon  me.  But,  of  those  things  that  are 
not  law,  enquire,  and  learn  of  my  wise  masters  learned  in 
the  law.  Notwithstanding,  albeit  that  certain  things  which 
are  moved  and  specified  in  the  said  books,  are  not  altogether 
law,  yet  such  things  shall  make  thee  more  apt,  and  able  to 
understand,  and  apprehend  the  arguments  and  the  reasons  of 
the  law,  &c.  For  by  the  arguments,  and  reasons  in  the  law, 
a  man  more  sooner,  shall  come  to  the  certainty,  and  know- 
ledge of  the  law."  The  first  thing  I  would  recommend  you 
to  do,  when  this  tiook  shall  have  been  published,  and  you 
obtain  a  copy,  is  to  have  it  bound  up  with  blank  leaves,  and 
in  them  enter  your  remarks,  as  to  the  errors,  that  may  seem 
to  exist  after  due  examination,  and  your  practice  which  may 
suggest  them  ;  but  much  more  the  remarks  which  the  learn- 
ed in  the  law  may  make  upon  them,  whether  coming  from 
a  judge  upon  the  bench,  or  a  counsellor  at  the  bar,  whose 
opinions  are  as  much  to  be  regarded,  so  far  as  respects  what 
is  extra-judicial,  and  out  of  court.  The  profession  form  a 
a  body  like  a  general  council  of  the  church,  but,  with  this 
difference,  that  what  the  council  determine  is,  eo  instante, 
to  be  accounted  orthodox  j  but,  in  the  opinions  of  the  pro- 
fession, make  their  way,  progressively;  nevertheless,  never 
fail  to  control  all  judges,  just  as  the  vox  populi  in  a  com- 
monwealth must  ultimately  prevail.  It  is  immaterial,  whe- 
ther what  is  contrary,  is  put  down  by  general  sentiment,  and 
public.opiniori  in  one  case,  or  the  other. 


THE  CONCLUSION. 


THIS  book  has  been  written  raptim,  et  carptim  ;  at 
snatches  of  time  in  the  intervals  of  business ;  and  these 
intervals  have  been  short,  never  exceeding  ten  days  at  a 
^me.     For,  though  I  have  been  two  or  tliree  times  in  a 
year,  near  three  weeks  at  home,  yet  the  gi-eater  part  of 
that  interval  has  been  taken  up  in  making  out  statements 
of  causes  tried  at  nisi  prms,  for  the  sake  of  the  court  in 
Term,  where  there  were  motions  for    a  new  trial,   on 
^"ound  of  misdirection  ;  or  on  reserved  points ;  or,  Xm 
the  ground  of  the  \'erdict  being  against  evidence.     But, 
«till  more,  my  time  has  been  occupied,  when  at  home,  hi 
considering  cases  holden  over  under  advisement  from  the 
Term,  and  examining  the  authorities  cited  by  the  coun- 
sel in  the  argument.     For  it  is  only  at  the  intervals  of 
which  I  speak,  from  these  occupations,  that  there  can  be 
leisure  to  make  notes  or  observations  upon  collateral  sub 
jects,  and  abstract  matters  of  la\v.     Nor  would  there  "be 
leisure  for  this,  at  these  intervals,  ^vere  it  not  that  I  ab- 
stract myself  wholly  from  compan}-,  and  neither  visit,  nor 
receive  visits  of  ceremony,  and,  see  no  one,  but  upon 
business ;    except  a  literary   cliaracter,    or  professional 
man,  to  whom  I  am  always  at  home,  and  perpetually  dis- 
engaged.    Because  from  them  I  may  derive  something  ; 
information,  or  instruction.     Drawing  near  the  end  of 
my  pilgrimage,  I  consider  all  time  lost  that  is  not  em- 
ployed in  leaving  some  memorandum  of  my  existence, 
and  that  may  be  useful  to  men,  either  by  contributing  tp 
mental  enjoyment,  or  to  instruct.     I  state  this  with  a  \\t\v 
to  exclude  the  conclusion  that  this  publication  can  be  c\i- 
dence  of  my  having  little  to  do,  in  my  immediate  official 


576  Law  Misclllames; 

occupations.  For,  it  is  rather  an  argument  to  the  contra- 
ry ;  and  that  I  must  have  been  industrious  and  attentive 
to  the  discharge  of  my  trust,  since  the  whole  subject  of 
the  book,  has  a  relation  to  the  study  and  the  practice  of 
the  law. 

I  will  acknowledge,  as  I  have  already  hinted,  that  I 
have  intended  it,  a  good  deal,  for  tlie  legislature,  with  a 
view  to  assist  them  in  the  amendment  of  the  Pennsylva- 
nia code ;  and,  this,  by  giving,  as  far  as  my  understanding 
would  lead  me ;  a  broad  view  of  the  state  of  their  law  as 
improved,  from  that  of  England,  or  variant  from  it ;  or, 
how  far  still  defective  in  our  provisions  by  acts  of  assem- 
bly, or  in  the  fiUing  up,  and  completing  our  excellent  judi^ 
ciaiy  establishment.  It  will  \^e  seen  also,  that  I  have  given 
a  glance  at  the  encroachments  of  the  national  government, 
whether  by  acts  of  congress,  or  judicial  construction,  upon 
state  rights.  Not  that  I  mean,  in  the  most  distant  degree,  to 
shake  the  confidence  of  the  state  in  the  national  govern- 
ment ;  on  the  contrary,  my  object  is  to  preserve  it  by  con- 
fining legislative  acts,  and  construction,  to  the  constitution- 
al orbit.  "  Esto  perpetua,"  may  it  last  forever,  would  be 
my  wish.  But  this,  in  the  nature  of  things,  cannot  be  ex- 
pected. I  look  for  its  dissolution,  I  am  afraid  at  no  dis- 
tant day.  The  late  symptoms  of  schism  in  the  nortlieni 
states,  seem  to  bespeak  an  approaching  catastrophe.  I 
consider  tl^  opinion  of  the  Massachusetts  judges,  in  an- 
swer to  the  questions  of  governor  Strong  ;  together  with 
the  order  from  Martin  Chittenden,  governor  of  Vermont, 
to  withdraw  the  militia  from  under  the  command  of  the 
United  States,  as  fraught  -with  the  seeds  of  death,  and 
destruction.  It  behooves  every  good  man  to  endeavour 
upon  great  and  enlarged  principles,  to  conciliate  and  re- 
concile rather  than  to  oppose,  and  enter  into  a  contest. 
If  the  northern  states  will  have  the  administration  oftli'^ 
sijcneral  government,  in  God's  name  let  them  take  a  tum 


Law  Miscellanies.  57T 

at  the  helm  ;  for  my  own  part  I  have  approved  of  all 
the  measures  of  the  present  administration  of  the  general 
government,  so  far  as  respects  foreign  powers.,  but  I  do 
not  chuse  to  go  farther,  because,  if  I  did,  I  would  have 
to  make  exceptions.  But  I  have  approved  of  the  war  with 
Britain  ;  I  say  notliing  as  to  the  time.,  or  the  preparation 
for  it.  For  I  am  not  about  to  write  a  chapter  upon  po- 
litics. But  I  had  no  idea  of  a  war  with  any  power  but 
that  of  Britain,  at  the  present  time.  Because  France  had  ei- 
ther been  drov/ned  in  the  ocean  like  a  rat,  or  had  been 
driven  from  it ;  and  it  would  be  unworthy  of  our  spirit 
to  be  pursuing  a  dead  animal ;  and  dead  she  is  as  to  the 
sea,  and  external  commerce.  Unless  we  go  upon  the 
land,  (the  continent  of  Europe)  what  spoliation  can  she 
make  ?  Britain  is  our  rival  on  the  seas ;  and,  for  that  rea- 
son, our  natural  enemy.  Take  John  Bull  by  the  horns, 
however  much  we  may  be  injured  in  the  first  instance, 
b  ovLv policy,  as  well  as  an  adversary  Avorthy  of  our  prowess, 
and  our  arms.  I  would  fight  her  for  a  thousand  years, 
rather  than  surrender  to  her  injustice,  and  abominable 
claims  of  the  dominion  of  the  sea.  It  is  upon  the  sea, 
only,  that  wt  come  in  contact  with  any  nation  worth  re- 
garding. It  is  there,  the  \vheel  of  our  government  rubs 
with  tliut  of  any  other  ;  and  France  has  no  wheel  there  for 
hubs  to  touch ;  she  is  worthy  making  war  with  until  we  can 
Snd  time  to  attend  to  the  depredation  of  Biirbary  powers, 
or  French  depredations.  But  if  it  would  reconcile  us 
amongst  ourselves,  to  make  war  with  France,  make  it 
and  put  an  end  of  the  difference.  For  the  dispute  actu- 
ally lias  been,  so  far  as  I  have  been  able  to  discover,  which 
adversary  uc  should  take;  or,  whether  or  not  vv-e  should 
not  take  both.  For  all  seemed  to  agree  prior  to  the  de- 
';kiration  of  Av.ir,  that  we  v/ere  a  humiliated  and  degraded 
race,  devoted  to  the  love  of  gain,  and  having  no  spirit  to 
resent  our  injuries.     And  certain  it  is,  as  I  have  been  as- 

4  D 


578  Law  Miscellanies. 

siired  frequentl} %  that  Americans  abroad  were  ashamed 
to  acknowledge  that  they  belonged  to  the  United  States. 
I  believe  it  will  not  I^e  the  case  now,  and  that  even  in 
Britain,  some  respect  has  began  to  be  entertained  for  us. 
There  is  no  animal  in  the  system  of  nature,  but  can  make 
itself  respectable,  provided  it  has  the  spirit  to  resent  in- 
juries. 

What  injuries  have  we  sustained  from  Britain  ?  The 
"very  insults  of  her  negociations  in  our  endeavours  to  con- 
ciliate peace,  is  a  cause  of  war.  For  a  nation  that  will 
treat  with  contempt  our  allegation  of  wrongs,  is  come  to 
that  height  that  it  behooves  to  resent.  I  say  this  because 
I  do  not  enter  into  tlie  question  of  her  injuries  ;  these, 
a  fortiore,  will  justify  our  declaring  war ;  and  unless  she 
is  brought  to  terms — interminable  war. 

But  the  cry  is  with  those  who  think  otherwise,  where 
shall  we  be,  if  Britain  should  go  down  ?  Where  are  we 
710W,  if  she  stands  up  ?  And  where  will  we  be,  if  her  do- 
minion  of  the  sea  is  not  reduced  ?  That  is  our  present 
concern ;  and  when  it  comes  to  be  reduced  below  an 
equality  upon  the  ocean,  what  hinders  us  to  throw  our- 
selves into  the  scale  in  her  favour.  If  Bonaparte  takes 
her  island,  which  God  avert,  and  of  which  I  have  not  the 
least  apprehension,  he  cannot,  at  the  same  time  take 
her  fleet ;  and  without  a  fleet  he  cannot  come  to  us. 
The  truth  is,  all  apprehension  of  France,  is  absurd,  ex- 
cept, as  to  the  spoliations  of  our  trade  that  comes  into  her 
ports  ;  and  having  combatted  the  Leviathan,  we  can  no- 
tice France  as  a  Shark,  that  will  be  scarcely  worthy  of 
our  harpoon.  As  to  all  external  commerce,  or  power  up- 
on the  sea,  she  is  a  dead  fish  already.  She  has  not  a  boat 
to  swim  upon  the  ocean,  that  can  be  worth  mentioning. 
But  I  arrest  myself.  There  are  those  who  think  differ- 
ently, both  upon  the  policy,  and  the  justice  of  the  war 
A\  ith  England ;  and  respect  is  due  to  the  opirtions  of  men, 
"But  while 


Law  Miscellanies.  579 

The  good,  the  brave, 
The  brave,  the  good, 
are  actiiig  in  the  cause,  may  not  I  be  allowed  to  use 
words  ?  This  I  will  only  say  to  the  student,  that  I  have 
examined  the  causes  of  the  present  ^\■ar,  and  I  think  it 
justifiable,  and,  on  ground  of  policy  absolutely  necessary, 
as  much  so  as  was  the  war  of  the  revolution,  which  gave 
us  independence  ;  and  I  can  have  no  doubt,  but  that  the 
heroes  of  this  war  will  add  their  names  to  those  of  seven- 
ty-six ;  and,  in  future  time  be  equally  regarded  ; 

The  ever  green  shall  flourish  where  they  ly. 

And  everlasting  be  their  memory. 

As  to  the  merits  of  this  publication  itself,  in  a  literary 
point  of  view,  or  as  a  didactic  work,  so  far  as  respects 
legal  investigation,  and  comment,  it  is  submitted,  to  the 
legitimate  judges,  the  constituted  authorities,  the  people, 
and  particularly  the  profession,  who  may  be  led  more  im- 
mediately to  examine,  and  to  form  an  opinion. 

"  Discite  justitiam  moniti,  et  temnere  Divos." 

The  people  are  the  gods  in  a  republic.  All  are  ame- 
nable to  this  tribunal ;  and,  as  the  gallery  is  the  Olympus 
of  the  Theatre,  so  it  belongs  to  the  high  and  low  to  ap- 
prove, or  disapprove,  in  this  greater  Theatre,  and  it  is  not 
always  the  best  judges  that  make  the  most  noise  in  the 
first  instance.  But,  ultimately,  it  must  be  the  opinion  of 
men  of  sense  that  will  fix  a  decision,  and  determine 
whether  what  has  been  executed,  is  a  thing  of  utility  or 
of  small  amount  towards  the  attainment  of  legal  science, 
or  the  improvement  of  any  part  of  the  legal  code  of  this 
state,  or  that  of  the  United  States,  or  any  hint  thrown  out 
which  may  contribute  to  the  administration  of  justice  in 
the  decisions  of  courts,  who  are  constituted,  and  intrusted 
for  that  purpose. 

FINIS. 


Memorandum  as  to  the  errata  of  this  publication. 

IT  has  bven  in  my  fioiver  to  revise  very  little  of  it  after  bein^ 
printed  off.,  and,,  doubtless,,  errors  from  the  cofiy  of  my  notesj  not  the 
most  legible  hand-writing- ;  or  from  my  dictation,  which  was  a  con- 
siderable part,,  must  have  occurred.  These,  in  addition  to  errors 
of  the  press,  might  require  a  table.  But  this  I  cannot  attend  to, 
and  must  leave  it  to  the  reader  to  supply  and  correct.  I  notice 
two,  which  struck  me  in  apart  which  I  had  an  opportunity  of  casting 
my  eye  upon.  The  one  occurs  in  page  167,  Cottom  Mathew,  for 
Cotton  Mather  ;  the  other  in  page  216,  per  capita,  which  should  be 
per  stirpes  ;  which,  currente  calamo,  was  a  lapsus  in  my  language^ 
a  great  blunder,  and  more  especially  requires  to  be  noted. 

In  page  ^02,  I  have  spoken  of  an  act  prohibiting  the  eligibility 
of  a  deputy  slieriff  to  the  office  of  sheriff,  isfc.  The  act  of  lith 
Feb.  1729-30,  sec.  20,  isnot  what  I  mean.  By  this  it  is  provided, 
^'^  that  no  sheriff  within  this  province  shall  continue  in  his  office 
of  sheriff,  or  occupy  the  said  office  above  three  years  ;  and  that 
no  man  who  hath  been  sheriff  or  under-sheriff  of  any  county  by 
the  space  of  three  years,  shall  be  chosen  sheriff  of  that  county 
again  within  three  years  next  ensuing."  I  mean  an  act,  and  such 
I  think  did  exist,  which  provides,  aJid  goes  more  to  the  root  of 
the  evil,  that  no  07ie  who  has  acted  as  deputy  within  the  space  of 
one  yGi\.v,^hall  be  eligible. 

In  page  389,  for  observations,  read  aberrations.     In  page  413, 
for  true  Englishmun  recrf  true-born  Englishman.     In  page  414, 
for  free  Englishman  n-ud  free-born  Englishman.   In  page  448,  for 
recover  read  remove. 


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